m 


m 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

RIVERSIDE 


THE  MODERN  IDEA  OF  THE  STATE 


HE 


MODERN  IDEA 


OF        ES'VV  E 


BY 

+** 
H.  KRABBE 

PROFESSOR    OF    PUBLIC    LAW    IN    THE    UNIVERSITY    OF    LEYDEN 

AUTHORIZED    TRANSLATION    WITH    AN    INTRODUCTION 

BY 

GEORGE  H.  SABINE 

PROFESSOR    OF    PHILOSOPHY    IN  THE    UNIVERSITY    OF   MISSOURI 

AND 

WALTER  J.  SHEPARD 

PROFESSOR   OF  POLITICAL  SCIENCE  IN   OHIO   STATE  UNIVERSITY 


D.  APPLETON  AND  COMPANY 

NEW    YORK  1922  LONDON 


Kn  5 


Printed  in  the  Netherlands 


CONTENTS 


TRANSLATORS'  INTRODUCTION .          xi 

I.     The  History  of  Sovereignty XV 

II.     Sovereignty  and  International  Law  ....  xxvm 

III.  The  State  as  a  Juristic  Person xxx 

IV.  The  Personality  of  Corporations xxxix 

V.     The  State  and  Law XLV 

VI.     Interests  as  the  Subject  Matter  of  Law.   .    .  LIV 

VII.     Law  as  the  Evaluation  of  Interests   ....  LXI 

VIII.     The  Authority  of  Law LXX 

IX.  The  Modern  Idea  of  the  State LXXIV 

AUTHOR'S  PREFACE  .  LXXXIII 


INTRODUCTION 

THE  MODERN  IDEA  OF  THE  STATE  1 


CHAPTER  I 

THE  AUTHORITY  OF  THE  STATE  AND  THE  AUTHORITY  OF 

LAW 3 

I.    The  Opposition  between  the  Old  and  the  New 

Idea  of  the  State 3 

II.    The  Rise  of  the  Modern  Idea  of  the  State  ....  6 

III.   The  Significance  of  the  Modern  Idea  of  the  State  8 


VI  CONTENTS 

FACE 

CHAPTER  II 

THE  AUTHORITY  OF  THE  SOVEREIGN  AND  THE  AUTHORITY 

OF  THE   LAW   IN   HISTORY 12 

I.    The  State  Originally  a  Community  founded  on 

Law 12 

II.    The  Rise  of  the  Authority  of  the  Sovereign  ...       12 

III.  Ancient  Political  Theory  as  a  Theory  of  the 
Legal  Order  of  the  Community 14 

IV.  The  Political  Theory  of  the  Middle  Ages  as  a 
Theory  of  Sovereignty :    .    .    .    .       16 

V.    The  Meaning  of  the  Contract  with  the  Sovereign 

and  of  the  Social  Contract  under  Absolutism   .       17 
VI.    The  Relation  between  the  Sovereign  Authority 
and   the   Organization   of   the   Community   in 

Grotius  and  Others 19 

VII.    Political  Theory  as  Exclusively  a  Theory  of  the 

Sovereign  Authority 22 

VIII.    The  Relation  between  Sovereign  Authority  and 

the  Organization  of  the  Community  in  England      24 
IX.    The  German  Philosophy  of  the  State  under  the 

Ancien  Regime 25 

X.    Montesquieu's  Separation  of  Powers :  A  Product 
of  Political  Theory  as  a  Theory  of  Sovereign 

Authority 25 

XI.    The  Theory  of  State  Sovereignty  in  the  Eight- 
eenth Century  .   .  * 27 

XII.    Rousseau's  Popular  Sovereignty 28 

XIII.    The  Rise  of  the  Modern  Idea  of  the  State  under 

the  Constitutional  System 30 

XIV.    The  Supplanting  of  the  Authority  of  the  Sov- 
ereign by  the  Authority  of  the  Law 34 


CONTENTS  VII 

PAGE 

CHAPTER  III 

THE    BASIS   OF  THE   BINDING   FORCE   OF   LAW 37 

I.    The  Concept  of  the  Sovereignty  of  Law  .   .    .  37 

II.    The  Authority  of  Law  as  the  Rulership  of  Will  41 

III.  Criticism  of  the  Rulership  of  Will 44 

IV.  The  Conditions  for  the  Validity  of  Law  ...  45 
V.    The  Basis  of  Legal  Rules 45 

VI.    Objections  to  the  Theory 52 

A.  The  Normative  Character  of  the  Sense  of 
Right 52 

B.  The  Authority  of  the  Sovereign  as  the  Au- 
thority of  Law 56 

C.  The  Stability  of  Law 61 

D.  Force  and  Law 63 

VII.    Law  as  the  Rule  of  a  Community 69 

VIII.    Majority  Rule 72 

IX.    Criticism  of  Objections  to  the  Majority  Prin- 
ciple    78 

X.    The  Individual  Sense  of  Right 83 

XL    The  Quality  of  the  Sense  of  Right 87 

XII.    The  Making  of  Statutory  Law 91 

XIII.  Legislation  as  the  Operation  of  an  Organized 
Sense  of  Right 94 

XIV.  Unwritten  Law 98 

A.  Content 98 

B.  Necessity 100 

C.  Supplementary 102 

D.  Abrogating  and  Modifying 107 

E.  Statute  and  Law 110 

XV.    Strengthening  the  Authority  of  Law     ....  114 


VIII 


CONTENTS 


A.  The  Administration  with  reference  to  Pun- 
ishments and  Judicial  Executions    .... 

B.  The  Further  Task  of  Administration  . 


115 
122 


CHAPTER  IV 

THE   MAKING  OF  LAW 127 

I.    Law-making  as  an  Intellectual  Process    ...  127 

II.    The  Influence  of  Codification 129 

III.  The  Revolution  in  Criminal  Law 129 

IV.  The  Revolution  in  Private  Law 131 

-^ 

V.    The  Influence  upon  Judicial  Decisions ....  1 33 
VI.    The  Idea  of  Sovereignty  and  Constitutional  Law  135 
VII.    The  Idea  of  Sovereignty  in  Administrative  Law  139 
VIII.    The  Hybrid  Character  of  the  Systems  of  Constitu- 
tional and  Administrative  Law 143 

IX.    The  Logical  Consequences  of  the  Old  and  New 

Political  Theories 145 

A.  The  Binding  Force  of  Law 145 

B.  The  Monopoly  of  Law 145 

C.  The  Continuance  of  Validity 146 

D.  The  Interpretation  of  Statutory  Law ...  147 

E.  Judicial  Decisions 147 


CHAPTER  V 

INTERESTS  AND   THE   SENSE   OF   RIGHT 150 

I.    Knowledge  of  Interests  and  Impartiality  .   ...  150 

II.    The  Platonic  Ideal 151 

III.  Monarchy 152 

IV.  The  Intellect 154 

V.    The  Balance  of  Interests 160 

VI.    The  Solution  of  the  Conflict  162 


CONTENTS  IX 

PAGE 

CHAPTER  VI 

DECENTRALIZATION   OF  LAW-MAKING 165 

I.    Decentralization    Based    upon    Community  of 

Interest 165 

II.    Transforming   Organized   Interests   into   Legal 

Communities 169 

III.    The  Lack  of  Legislative  Organs 171 


CHAPTER  VII 

THE   SOURCES   OF   LAW  .  175 


CHAPTER  VIII 

THE   DEVELOPMENT  OF   LAW 180 

I.    The  Historical  Process 181 

II.    Intellectualism 188 

III.    The  Emotional  Life    .  193 


CHAPTER  IX 

THE   STATE 200 

I.    The  Old  Theory  of  the  State 200 

II.    Criticism 204 

III.  The  Modern  Theory  of  the  State 208 

IV.  The  State  as  a  Community  of  Interests  ...  213 
V.    Origin  of  the  State  as  a  Community  of  Inter- 
ests      215 

VI.    Origin  of  the  State  as  a  Legal  Community  .   .  221 

VII.    The  Organization  of  the  Community  of  Interests  226 


X  CONTENTS 

PACS 

CHAPTER  X 

THE    INTERNATIONAL   LEGAL   COMMUNITY 233 

I.    The  Authority  of  International  Law     ....  233 

A.  The  Derivation  of  its  Authority  from  the 
Authority  of  the  State 233 

B.  Criticism 236 

II.    The  Content  of  International  Law 238 

A.  The  Significance  of  International  Law  for  the 
State  as  a  Legal  Community 238 

B.  The  Subjects  of  International  Law  ....  240 

C.  The  Connection  between  National  and  In- 
ternational Law 245 

III.    The  Creation  of  International  Law 248 

A.  Organs 248 

B.  Customary  Law 251 

C.  Treaty-Law 252 

D.  Contractual   and   Declaratory  Treaties   .   .  256 

E.  Legislation 259 

F.  The  Internal  Transformation  of  International 
Law 263 

G.  The  Rise  of  a  World  State   .  269 


TRANSLATORS'  INTRODUCTION 

The  value  of  the  more  general  and  abstract  efforts  of  politi- 
cal theory,  of  what  may  perhaps  be  called  the  philosophy  of  the 
state,  is  often  questioned.  It  is  urged  on  the  one  hand  that  the 
true  science  of  politics  cannot  go  beyond  the  study  of  the  actual 
organization  of  government  and  of  its  relations  to  other  social 
and  economic  institutions.  On  the  other  hand,  it  is  asserted  that 
political  philosophy,  because  it  is  necessarily  a  priori  in  method, 
cannot  do  more  than  ring  the  changes  on  certain  fundamental 
types  of  theory  which  were  stated  once  for  all  in  the  far-distant 
past.  Thus,  for  example,  Professor  Dunning  in  his  recent  book 
on  Political  Theories  from  Rousseau  to  Spencer  says,  "Greek 
Thought  on  this  problem  [the  justification  of  authority  and 
submission]  in  the  fourth  and  third  centuries  before  Christ  in- 
cluded substantially  all  the  solutions  ever  suggested."  J) 

Nevertheless,  with  some  ups  and  downs,  political  philosophy 
goes  on;  it  is  one  of  those  subjects  of  permanent  human  inter- 
est which,  whether  "scientific"  or  not,  men  are  not  likely  to 
abandon.  To  be  sure,  it  does  at  times  degenerate  into  an  apol- 
ogy for  special  interests  in  their  endless  struggle  for  power. 
This  danger  can  scarcely  be  avoided  when  men  undertake  to 
weigh  values  and  to  estimate  the  importance  of  tendencies  that 
have  not  yet  eventuated  in  political  fact.  But  notwithstanding 
this  danger,  the  criticism  of  principles  is  indispensable.  The  no- 
tion that  political  theory  can  be  reduced  strictly  to  an  analysis 
and  summation  of  accomplished  political  facts  is  really  idle. 
The  political  theorist  must  no  doubt  feel  the  scientific  reverence 
for  fact  as  keenly  as  any  other  thinker,  but  he  cannot  escape 

»)  P.  416. 


XII  TRANSLATORS     INTRODUCTION 

from  the  fact  that  his  subject  matter,  unlike  that  of  the  physical 
scientist,  includes  an  ideal  dimension.  For  political  institu- 
tions are  not  unchangeable,  nor  do  they  change  solely  under  the 
influence  of  objective  conditions.  At  bottom  political  phenome- 
na belong  to  the  realm  of  mind  and  mind  is  always  in  part  an 
unrealized  plan  for  the  future,  as  well  as  a  record  of  accomplish- 
ment. Political  theory  certainly  cannot  neglect  what  is,  but 
just  as  little  can  it  close  its  eyes  to  what  ought  to  be,  for  what 
ought  to  be  is  an  ineradicable  element  of  man's  experience  in 
his  political  relationships  and  a  real  force  in  his  conduct. 

Consequently  political  thought  has  always  included,  and 
must  always  include,  not  only  the  generalization  of  facts  but 
also  the  valuation  of  tendencies.  It  is  a  product  of  the  need  to 
clarify  the  mental  vision,  to  see  present  events  clear  and  whole 
in  the  endless  struggle  for  a  more  reasonable  reconstruction  of 
the  conditions  of  human  life.  And  the  wholeness  of  institutions 
includes  what  they  are  becoming  quite  as  much  as  what  they 
are.  The  notion  that  political  philosophy  consists  of  a  few  ab- 
stract principles,  once  for  all  completed  in  the  hands  of  the 
Greek  Philosophers,  has  in  fact  done  serious  injury  to  the  polit- 
ical thought  of  the  nineteenth  century.  A  return  to  the  Greek's 
clear  perception  of  the  fact  that  social  relations  are  the  indis- 
pensable condition  of  the  individual's  good  was  undoubtedly 
a  useful  corrective  to  the  abstract  individualism  of  the  natural 
rights  philosophers.  It  can  easily  be  understood  why  political 
thinkers  turned  to  Plato  and  Aristotle  for  a  saner  point  of  view 
than  that  which  they  inherited  from  the  era  of  the  Revolution. 
But  to  treat  the  Greek  city  state  as  an  analogue  of  the  modern 
national  state  is  merely  to  forget  the  long  story  of  Rome  and 
the  Middle  Ages,  to  lose  sight  of  the  enormous  upheaval  of  val- 
ues that  accompanied  the  rise  of  the  Church  and  its  dissolution 
at  the  Reformation,  and  to  neglect  the  rise  of  feudalism  and  its 
fall  before  the  advances  of  commerce  and  industrialism.  The 
supposition  that  behind  all  this  there  is  an  unchanging  body  of 
political  principles  is  merely  the  last  illusion  of  seventeenth  cen- 
tury rationalism.  Throughout  the  twenty-three  centuries  since 


TRANSLATORS     INTRODUCTION  XIII 

Aristotle,  political  theory  has  stood  close  to  the  centers  of 
change  from  which  the  modern  state  finally  emerged.  It  has 
sought  continually  to  describe  and  evaluate  these  forces  of 
change,  to  create  the  conditions  of  rational  foresight,  to  su- 
persede muddle  by  direction.  From  time  to  time  it  has  gone 
back  to  Greek  thought  for  inspiration,  but  the  inspiration 
lay  less  in  the  borrowing  of  specific  theories  than  in  the  ideal 
of  an  intelligence  which  in  the  midst  of  change  can  look  before 
and  after  and  so  make  itself  master  of  its  fate.  That  it  bor- 
rowed from  the  past  is  less  important  than  that  it  aimed  to 
adapt  its  borrowings  to  new  times  and  new  conditions.  Let  it 
be  granted  that  political  theory  at  its  worst  can  become  special 
pleading.  Nevertheless  the  continuous  criticism  of  ideals  and 
tendencies  remains  an  indispensable  part  of  its  function. 

This  function  is  at  once  negatively  critical  and  constructive. 
The  march  of  events  is  not  wholly  conscious,  nor  conscious  to 
all  men  equally.  Ideas  and  ideals  which  once  corresponded  to 
social  and  political  fact  become  outworn  and  obsolete.  They 
become  not  only  fictions  but  obstacles  to  the  solution  of  new 
political  problems.  It  is  the  function  of  the  political  thinker  to 
display  the  unreality  of  such  notions,  in  order  that  the  ground 
may  be  cleared  for  a  more  adequate  conception  of  political  re- 
lations. Institutions,  like  habits,  can  bind  and  fetter  the  mind, 
when  they  issue  in  conduct  that  has  ceased  to  be  suitable.  The 
legislator  and  the  administrator,  as  well  as  the  man  in  the 
street,  needs  to  have  the  cobwebs  of  obsolete  theory  cleared 
from  his  mind.  Criticism  is  the  sole  means  of  re-establishing  a 
clearer  vision  of  political  and  social  realities.  But  for  this  pur- 
pose no  amount  of  merely  negative  criticism  will  suffice.  The 
political  theorist  cannot  avoid  some  of  the  functions  of  states- 
manship ;  he  must  seek  the  whither  no  less  than  the  whence  of 
institutions;  he  must  estimate  the  forces  at  work  and  their  di- 
rection. The  value  of  a  political  theory  depends  not  only  upon 
its  recognition  of  achieved  fact  and  on  the  logical  thorough- 
ness of  its  synthesis,  but  also  upon  its  grasp  of  fact  in  posse. 
Thus  it  was  that  Hobbes,  who  far  surpassed  Locke  in  the  force 


XIV  TRANSLATORS     INTRODUCTION 

of  his  logic,  was  yet  less  effective  than  the  latter,  for  he  failed 
to  see  the  forces  and  tendencies  that  were  ushering  in  consti- 
tutional government. 

The  work  of  Professor  Krabbe  which  is  here  presented  in 
translation  is  a  notable  effort  both  to  show  the  insufficiencies  of 
current  political  theory  and  to  outline  the  new  form  which  politi- 
cal relationships  are  assuming.  His  criticisms  are  directed  at  the 
fundamental  conceptions  of  accepted  theory  and  they  portend 
a  radical  reconstruction  of  theory  in  the  light  of  changes  which 
are  visibly  taking  place  in  contemporary  politics.  His  theory 
makes  no  pretense  to  finality  or  even  to  completeness.  It  is 
subject  to  revision  in  the  light  both  of  criticism  and  of  data  not 
yet  brought  to  bear  upon  the  problem.  In  its  main  features  it 
is  in  accord  with  the  criticism  of  the  state  by  other  scholars,  a 
volume  of  criticism  which  has  reached  proportions  that  make 
it  a  phenomenon  of  first-rate  importance  in  political  science  at 
the  present  time.  The  impartial  reader  must  form  his  own  judg- 
ment of  the  worth  of  this  criticism  as  against  traditional  theo- 
ries and  also  of  the  adequacy  of  Professor  Krabbe's  special  con- 
tributions to  a  constructive  theory. 

Such  a  constructive  theory  looks  forward  not  only  to  changes 
in  the  structure  of  political  science  but  also  to  impending 
transformations  of  government.  But  it  is  impossible  to  visualize 
in  detail  before  they  occur  the  changes  in  the  organization 
of  government  which  the  theory  implies.  The  organization  of 
parliamentary  government  was  presaged  by  Locke's  Treatises 
and  the  American  constitutional  system  was  suggested  by  the 
theories  of  Locke  and  Montesquieu.  Yet  no  contemporary  of 
those  writers  could  have  foreseen  in  detail  the  course  of  de- 
velopment which  government  in  England  and  America  would 
take.  To  conservative  minds  of  their  day  their  theories  ap- 
peared both  speculative  and  anarchical.  If  the  reader  of  this 
book  feels  a  like  difficulty  in  envisaging  a  constitution  satis- 
factory to  practical  requirements,  he  must  remember  that  the 
process  of  giving  legal  expression  to  dynamic  ideas  is  slow  and  is 
accompanied  by  a  deal  of  experimentation.  Practical  constitu- 


TRANSLATORS     INTRODUCTION  XV 

tions  are  achieved  by  the  process  of  trial  and  error,  but  always 
more  or  less  under  the  guidance  of  ideas.  The  justification  of  a 
political  theory  does  not  lie  in  the  presentation  of  a  fully  elabor- 
ated scheme  of  government  but  in  a  truthful  expression  of  the 
trend  and  strength  of  political  forces. 

I.      THE   HISTORY   OF  SOVEREIGNTY 

The  corner-stone  of  political  theory  has  long  been  the  princi- 
ple of  the  state's  sovereignty.  In  order  to  make  clear  the  im- 
portance of  this  conception  it  is  necessary  to  review  briefly  its 
history.  This  question  was  discussed  at  length  by  Professor 
Krabbe  in  an  earlier  work  entitled,  Die  Lehre  der  Rechtssouve- 
rdnitdt,  1906,  to  which  the  work  now  translated  is  a  sequel. 
The  former  work  is  largely  a  critical  and  historical  analysis 
of  the  conception  of  the  state  and  of  its  relation  to  law. 
On  the  ground  cleared  by  this  criticism  the  present  book 
undertakes  to  lay  down  the  foundations  of  a  new  theory  of 
the  state. 

The  conception  of  sovereignty  belongs  essentially  to  modern 
political  theory.  It  is  sheer  confusion  to  identify  autarchy  or 
self-sufficiency,  which  Aristotle  asserts  to  be  the  distinguish- 
ing mark  of  the  state,  with  the  modern  sovereignty.  The  for- 
mer is  an  ethical  conception;  the  latter  is  political  and  legal. 
The  self-sufficing  state  is  one  which  is  equipped  with  all  that  is 
necessary  to  the  good  life.  Political  independence  may  be  one 
element  of  this  equipment  but  it  is  not  more  essential  than  econo- 
mic self-sufficiency.  Autarchy  means  the  ability  of  the  state  to 
satisfy  all  the  needs  of  its  citizens.  Nor  did  the  Romans  possess 
the  conception  of  sovereignty,  though  the  Roman  law  came  to 
recognize  that  the  emperor's  right  to  command  is  inherent  in 
his  position.  This  principle  of  law  was  utilized  later  when  the 
theory  of  sovereignty  came  to  be  formulated,  but  the  asser- 
tion of  sovereignty  carries  with  it  the  suggestion  and  rejection 
of  a  possible  division  of  authority.  Such  a  possible  pluralism 
was  in  fact  altogether  foreign  to  Roman  thought  and  practice. 


XVI  TRANSLATORS     INTRODUCTION 

A  universal  state,  a  universal  law,  a  universal  language,  and 
eventually  a  universal  church  were  the  characteristic  expres- 
sions of  the  Roman  genius. 

It  was  not  until  the  Middle  Ages  that  the  conditions  of  such 
a  pluralism  existed  and  then  they  existed  everywhere.  Author- 
ity is  everywhere  divided,  dispersed,  and  questioned.  Church 
and  state,  pope  and  emperor,  emperor  and  king,  king  and  bar- 
on, lord  and  vassal  are  in  continual  opposition.  Society  is  di- 
vided into  estates  which  are  often  in  a  high  degree  class-con- 
scious, but  nowhere  is  there  a  national  consciousness.  Decrees 
of  emperor,  pope,  and  king,  which  frequently  conflict  with  one 
another,  are  opposed  and  checked  by  local  law  and  custom.  No- 
where is  there  an  unambiguous  authority  standing  at  the  head 
of  a  unified  political  and  legal  system.  From  this  welter  of  con- 
flicting authorities  and  rival  jurisdictions  the  national  staet 
eventually  emerges  and  with  it  the  political  conception  of 
sovereignty. 

This  phenomenon  is  connected  essentially  with  the  rise  of 
the  monarchy.  In  the  earlier  Middle  Ages  the  strife  of  authori- 
ties had  centered  about  the  controversy  between  the  pope  and 
the  emperor.  This  struggle,  however,  was  gradually  eclipsed  in 
the  controversies  which  arose  from  the  efforts  of  the  national 
king  to  extend  his  authority  within  the  limits  of  his  own  terri- 
tory. In  the  beginning  the  supremacy  of  the  king's  authority  is 
by  no  means  admitted.  He  is  limited  by  the  claims  of  both  the 
great  powers  which  had  been  contesting  with  each  other  the 
claim  of  supremacy.  The  emperor's  claim  to  universal  secular 
authority  is  perhaps  theoretical,  but  the  power  of  the  Church 
within  the  kingdom  is  often  real  enough.  The  independence  of 
the  ecclesiastical  courts,  the  immunities  of  the  clergy  from 
civil  authority,  and  the  power  of  the  Church  to  collect  tithes 
are  examples  of  the  serious  impairment  of  the  king's  authority 
within  the  national  territory.  Apart  from  the  ancient  powers  of 
Church  and  Empire,  the  feudal  nobility  could  often  defy  his 
decrees.  When  an  angry  king,  on  saying  to  a  powerful  retainer, 
"You  shall  either  go  or  hang,"  could  receive  the  truthful  re- 


TRANSLATORS     INTRODUCTION  XVII 

sponse,  "I  shall  neither  go  nor  hang,"  l)  there  was  obviously  no 
such  attribute  as  sovereignty  attaching  to  the  king's  authority. 
Again,  a  like  independence  of  central  control  was  often  success- 
fully asserted  by  the  cities.  "We  will  have  no  king  but  the  May- 
or," was  the  haughty  assertion  of  the  citizens  of  London. 

But  it  was  not  merely  the  resistance  of  individual  barons, 
cities,  or  ecclesiastical  corporations  that  the  king  had  to  face. 
Linked  together  in  the  "estates,"  these  elements  of  society  were 
long  able  to  meet  the  king  on  more  than  even  terms  and  se- 
riously impede  the  growth  of  royal  power.  The  English  Parlia- 
ment in  the  Middle  Ages  did  not  represent  the  people  as  a 
whole  but  some  hundreds  of  corporate  bodies  and  powerful 
lords.  The  probable  etymology  of  "commons"  is  "commu- 
nities" or  corporate  bodies. 2)  The  House  of  Commons  was  the 
assembly  of  the  counties  and  boroughs,  —  the  corporate  bod- 
ies, —  of  the  realm,  not  a  representative  assembly  of  the  com- 
mon people.  Unlike  the  pope  and  the  emperor,  the  estates  did 
not  presume  to  set  themselves  above  the  king,  but  they  did 
claim  a  co-ordinate  position  or  insisted  upon  their  independence 
of  him.  The  political  relation  of  sovereign  and  subject  is  quite 
foreign  to  this  mediaeval  political  structure;  the  relation  be- 
tween the  king  and  the  estates  is  virtually  contractual.  Thus 
Magna  Charta  is  to  be  viewed  as  a  sort  of  treaty  between  the 
great  barons  and  the  king,  not  as  a  constitutional  guarantee  of 
popular  rights. 

But  time  and  the  forces  of  integration  were  on  the  side  of  the 
king.  As  M.  Monod  has  expressed  it,  "We  can  follow  through 
the  feudal  epoch  the  development  of  the  monarchical  idea 
which  was  to  destroy  feudalism,  as  we  can  follow  across  the  mo- 
narchical epoch  the  national  idea  which  was  to  throw  dynastic 
interests  back  into  the  second  place."  3)  The  rise  of  the  national 
state  is  the  outstanding  political  event  of  modern  history  and 
it  is  the  achievement  of  a  period  of  royal  absolutism.  In  this 


')  Dicey,  Privy  Council,  p.  2. 

*)  Boutmy,  Constitutional  Law,  p.  157. 

»)  Revue  kistorique,  Vol.  XLIII,   1890,  p.  95. 

The  modern  idea  of  the  State. 


XVIII  TRANSLATORS     INTRODUCTION 

respect  the  development  of  government  in  England  was  more 
than  a  century  in  advance  of  that  on  the  Continent,  but  in 
both  cases  the  development  followed  the  same  line.  The  work 
of  Henry  VIII  and  Elizabeth  was  substantially  similar  in  aim 
to  that  of  Louis  XIV  or  Frederick  William  I.  It  was  a  work  of 
consolidation,  unification,  nationalization.  The  later  evolution 
of  popular  constitutional  government  could  certainly  not  have 
followed  the  course  it  did,  had  not  provinces  been  joined  into 
kingdoms,  local  groups  been  welded  into  nations,  and  the  con- 
flicting medley  of  feudal  rights,  privileges,  exemptions,  and 
authorities  been  reduced  to  a  unified  political  system.  This  was 
the  task  of  absolute  monarchy. 

The  theoretical  corner-stone  of  this  absolute  personal  power 
is  the  concept  of  sovereignty.  This  conception  sets  up  the  ideal 
of  a  legal  independence  free  from  all  external  control  and  a  le- 
gal supremacy  over  all  the  internal  affairs  of  the  kingdom.  It 
was  an  ideal  which  obtained  its  force  from  the  long  contro- 
versies in  which  numerous  authorities,  —  Empire,  Papacy,  feud- 
al nobility,  free  cities,  ecclesiastical  corporations,  and  king,  - 
had  vied  for  the  right  to  exact  obedience.  It  is  for  this  reason 
that  the  conception  of  sovereignty  belongs  peculiarly  to  modern 
times;  ancient  times  knew  no  conflicts  of  authority  which 
could  have  called  such  an  ideal  into  being. 

In  particular  it  was  the  king  of  France  who  in  the  sixteenth 
century  achieved  the  title  to  be  described  as  "in  his  own  king- 
dom, as  it  were,  a  corporeal  god."  And  in  1576  Jean  Bodin 
first  formulated  a  definition  of  the  state  which  made  sovereign 
power  its  essential  characteristic.  The  state  consists  of  citizens 
subject  to  some  sovereign  power  and  "sovereignty  is  the  su- 
preme power  over  citizens  and  subjects,  unrestrained  by  the 
laws.  "  *)  The  sovereign  is  the  source  of  law  and,  as  such,  can- 
not be  bound  by  it;  he  is  subject  only  to  the  divine  law  and  to 
the  law  of  nature,  and  is  responsible  to  God  alone  for  his  acts. 
Political  theory  thus  joined  hands  with  political  policy;  as 
Machiavelli  had  prescribed  the  concentration  of  power  in  the 

*)  DC  re  publica,  Lib.  I,  cap.  vm. 


TRANSLATORS     INTRODUCTION  XIX 

hands  of  the  princes  as  the  only  means  of  uniting  Italy,  so  Bo- 
din,  in  the  midst  of  civil  war,  celebrated  in  his  theory  of  sover- 
eignty a  similar  concentration  in  France,  which  was  about  to 
be  consummated  in  his  day.  Moreover,  this  theory  conformed 
quite  simply  to  the  most  significant  tendency  of  the  century, 
the  fact  that  the  king  was  not  subject  to  the  Pope,  owed  no 
fealty  to  the  Emperor,  and  within  his  kingdom  was  struggling 
toward  a  position  in  which  he  could  legislate  for  the  whole 
body  of  his  subjects  and  enforce  the  law  directly  upon 
them  by  his  own  officers.  The  famous  claim  imputed  to  Louis 
XIV,  "I  am  the  state,"  was  in  part  simply  a  statement  of  fact ; 
for  the  rest,  it  was  a  somewhat  crude  way  of  stating  a  great  po- 
litical ideal.  The  theory  of  sovereignty  was  an  invaluable  weap- 
on in  the  hands  of  the  monarch  in  his  contest  with  the  other 
claimants  to  authority ;  it  gave  a  theoretical  foundation  for  the 
emerging  national  absolute  state,  and  it  clearly  forecast  the 
line  that  political  evolution  was  to  follow.  It  is  clear,  therefore, 
why  political  philosophy  regarded  the  relation  of  subject  and 
sovereign  as  the  fundamental  political  fact. 

It  is  true  that  the  authority  of  the  king,  even  in  the  period  of 
the  most  extreme  absolutism,  did  not  reach  to  the  lengths  that 
the  theory  demanded.  Theoretically  the  law  owed  its  validity 
to  the  will  of  the  king,  even  though  it  might  rest  upon  an  imme- 
morial custom  which  long  antedated  the  rise  of  the  king.  More 
and  more,  however,  the  enforcement  of  customary  law  fell  into 
the  hands  of  royal  officers  and  it  was  possible  for  Bodin  to 
maintain  that  custom  cannot  be  law  without  the  sanction  of 
the  royal  will.  But  custom  and  established  law  are  stubborn 
facts  and  the  truth  is  that  no  absolute  monarch  ever  actually 
obtained  more  than  a  very  limited  power  to  impose  his  will 
upon  that  common  law  of  the  folk  or  people  which  for  the 
most  part  determined  the  legal  relations  between  private  per- 
sons. In  France  the  local  customs  remained  largely  intact 
throughout  the  absolute  monarchy  and  down  to  the  Revolu- 
tion, in  spite  of  various  projects  for  a  general  codification.  The 
king  really  exerted  only  a  slight  legislative  authority  over  pri- 


xx  TRANSLATORS'  INTRODUCTION 

vate  law.  "Down  to  the  end  of  the  ancien  regime  the  king  of 
France  did  not  touch  the  private  law  except  in  the  rarest  cases. 
This  law  remained  essentially  a  local  and  customary  law.  Pol- 
icy, administration,  and  police  duties  are  the  chief  objects  of 
official  action.  And  this  is  in  fact  the  king's  sphere  of  action. 
His  ordinances  and  decrees  are  from  the  beginning  administra- 
tive ;  they  are  not  civil  laws To  sum  up,  the  chief  fact 

which  dominates  our  history  is  the  relative  impotence  of  the 
king  over  private  law."  l) 

On  the  other  hand,  the  absolute  monarchy  concentrated  in 
the  hands  of  the  king  the  power  to  legislate  in  matters  of  ad- 
ministration and  his  mandates  to  his  officials  became  the  source 
of  administrative  or  public  law.  Only  in  England,  where  the 
rise  of  Parliament  prevented  the  differentiation  of  public  from 
private  law,  was  there  a  unified  law  having  authority  over  offi- 
cials and  private  persons  alike,  and  a  single  source  of  law,  the 
King  in  Parliament.  But  in  this  respect  again  political  evolu- 
tion in  England  was  ahead  of  that  on  the  Continent.  With  the 
extension  of  the  representative  system  and  the  growth  of  the 
power  of  parliament  over  the  administration,  the  state  did  in 
fact  achieve  a  completer  unification  of  the  law  than  the  absolute 
power  of  the  monarch  was  able  to  bring  about.  The  represent- 
ative assembly  gradually  absorbed  legislative  power  until  the 
tatute  was  not  only  a  limitation  upon  the  competence  of  the 
administration  but  the  basis  of  that  competence.  We  shall  have 
occasion  again  to  refer  to  this  relation  between  the  state  and 
the  law. 

The  theory  of  sovereignty  could  not  remain  merely  an  asser- 
tion of  the  supremacy  of  the  royal  will,  for  the  will  of  the  mon- 
arch, in  England  at  least,  presently  came  to  be  of  little  mo- 
ment. The  tendency  of  constitutional  government  was  directly 
away  from  arbitrary  personal  power  and  the  chief  aim  of  Locke's 
political  theory  is  to  determine  how  power  can  be  subject 


*)  Paul  Viollet,  Histoire  des  institutions  politiques  et  administrative*  de  la  France, 
Vol.  II,  pp.  198  ff.  Cf.  Krabbe,  Die  Lehre  der  Rechtssouverdnitdt,  Ch.  Ill,  from 
which  the  quotation  is  taken. 


TRANSLATORS     INTRODUCTION  XXI 

to  legal  limitation.  His  ideal  is  government  subject  throughout 
to  law.  With  Hobbes  plainly  in  mind,  he  scouts  the  notion  of 
a  contract  which  makes  all  men  but  one  subject  to  law.1)  Un- 
fortunately, however,  Locke  was  not  able  to  make  clear  how 
the  law-making  power  can  itself  be  subject  to  law.  His  theory 
is  that  ultimate  power  rests  with  the  people  and  that  political 
obedience  is  due  to  "the  public  will  of  the  society,"  the  prolific 
germ  of  all  the  later  theories  of  popular  sovereignty.  In  point 
of  fact,  the  net  outcome  of  the  Revolution  of  1 688  was  to  trans- 
fer the  sovereign  power  from  the  king  to  Parliament,  leaving 
the  conception  of  sovereign  power  itself  largely  unchanged.  The 
assumed  unity  of  the  sovereign  was  for  a  time  shaken  by  Montes- 
quieu's doctrine  of  the  separation  of  powers.  But  the  devel- 
opment of  the  ministerial  system  and  the  concentration  not 
only  of  the  royal  prerogative  but  of  all  executive  powers  in  the 
hands  of  a  ministry  responsible  to  the  House  of  Commons  made 
the  legal  omnipotence  of  Parliament  the  cardinal  principle  of 
British  government.  The  work  of  Bagehot  in  the  middle  of  the 
nineteenth  century  established  firmly  the  idea  of  parliamen- 
tary sovereignty. 

The  theory  of  popular  sovereignty,  which  fell  somewhat  into 
abeyance  after  the  Revolutionary  Period,  got  a  new  lease  of 
life  from  the  rapid  growth  of  institutions  which  made  Parlia- 
ment more  directly  amenable  to  the  control  of  public  opinion. 
With  the  extension  of  the  suffrage  by  the  three  reform  bills, 
there  came  visibly  into  existence  and  power  a  new  element  in 
the  state,  the  electorate.  Not  only  was  the  House  of  Commons, 
which  had  come  to  be  nearly  equivalent  to  Parliament,  depend- 
ent upon  the  voters  through  elections,  but  not  infrequently 
its  decisions  were  made  the  subjects  of  appeal  to  the  electorate 
through  dissolutions  and  new  general  elections.  In  the  face  of 
this  new  factor  in  the  state,  could  one  speak  with  propriety  of 
parliamentary  sovereignty  ?  Was  not  the  electorate  sovereign  ? 
And  yet,  if  Parliament  was  dependent  upon  the  electorate,  it 
was  no  less  true  that  the  qualifications  of  voters,  the  terms  and 

*)   Treatises  concerning  Government,  II,  Sect.  90  ff. 


XXII  TRANSLATORS     INTRODUCTION 

conditions  of  elections,  indeed  the  possibility  of  elections  them- 
selves, all  rested  upon  statute,  which  was  merely  the  expres- 
sion of  Parliament's  will.  Was  Parliament  sovereign  or  was  the 
electorate  ? 

The  confusion  was  increased  by  the  fact  that  as  a  rule  no 
clear  distinction  was  made  between  the  electorate  and  the  people. 
The  theory  of  popular  sovereignty,  as  outlined  by  Locke 
and  developed  by  Rousseau,  attributed  the  sovereign  power 
to  the  entire  body  of  citizens,  a  much  more  inclusive  category 
than  the  electorate.  English  political  theory  was  not  greatly 
influenced  by  Rousseau's  philosophy,  but  nevertheless  the  idea 
of  popular  sovereignty  even  in  England  has  meant  sometimes 
the  sovereignty  of  the  voters  and  sometimes  that  of  all  the  cit- 
izens. It  was  to  resolve  this  confusion  over  the  location  of  sover- 
eignty that  the  theory  of  two  sovereign  authorities  came  to  be 
generally  accepted  by  recent  writers  on  English  constitutional 
law.  There  is  a  legal  sovereign,  Parliament,  and  a  political  sov- 
ereign, the  electorate  or  the  people.  Thus  Professor  Dicey  em- 
phasizes the  distinction  between  legal  and  political  sovereignty. 
"Parliament,"  he  says,  "is,  from  a  merely  legal  point  of  view, 
the  absolute  sovereign  of  the  British  Empire,  since  every  Act 
of  Parliament  is  binding  on  every  Court  throughout  the  British 
dominions,  and  no  rule,  whether  of  morality  or  of  law,  which 
contravenes  an  Act  of  Parliament,  binds  any  Court  throughout 
the  realm.  But  if  Parliament  be  in  the  eye  of  the  law  a  supreme 
legislature,  the  essence  of  representative  government  is,  that 
the  legislature  should  represent  or  give  effect  to  the  will  of  the 
political  sovereign,  i.  e.,  of  the  electoral  body,  or  of  the  nation."1) 
But  with  reference  to  this  last  clause,  it  may  be  asked,  Which 
is  the  political  sovereign,  "the  electoral  body,"  or  "the  na- 
tion" ?  Certainly  the  two  are  not  identical. 

The  theory  of  popular  sovereignty  has  never  been  able  to 
arrive  at  logical  clearness.  The  truth  is  that  it  has  in  it  two 
elements  which  refuse  to  combine.  As  has  been  pointed  out 
above,  the  conception  of  sovereignty  as  it  originated  with 

M  Law  of  the  Constitution,  Ed.  8,  p.  425. 


TRANSLATORS     INTRODUCTION  XXIII 

Bodin  was  a  defense  of  the  claim  to  ultimate  authority  embod- 
ied in  the  person  of  an  absolute  monarch  as  representative  of 
the  state.  After  the  Revolution  such  authority  was  not  attrib- 
utable to  the  king  alone  but  it  was  transferred  to  the  King  in 
Parliament.  But  it  was  certainly  not  the  main  purpose  of  the 
Revolution  merely  to  change  the  location  of  absolute  authority. 
The  primary  purpose,  as  Locke  perceived,  was  to  obtain  guar- 
antees that  authority  should  not  be  exercised  arbitrarily  by 
the  king  or  indeed  by  any  group  of  men.  The  first  effective  op- 
position to  James  came  from  spokesmen  of  the  Common  Law 
like  Edward  Coke  and  was  directed  against  an  arbitrary  use  of 
the  royal  prerogative.  The  opposition  was  not  to  authority  as 
such,  but  to  an  identification  of  authority  with  the  free  will  of 
the  monarch.  Certainly  John  Locke  would  have  been  no  more 
tolerant  of  an  identification  of  authority  with  the  free  will  of 
Parliament.  Even  the  enactments  of  that  body  had  to  justify 
themselves  by  agreement  with  the  law  of  nature ;  the  function 
of  positive  law  was  to  attach  penalties  to  violations  of  natural 
law.  l)  This  removal  of  arbitrariness  from  authority  was  always 
the  essential  moral  idea  behind  the  theory  of  popular  sovereign- 
ty; it  is  still  the  essential  idea  behind  Professor  Dicey's  theory 
of  public  opinion  as  the  political  sovereign.  What  is  essential  is 
that  Parliament  is  responsible,  morally  if  not  legally,  for  its 
use  of  authority.  Behind  the  fact  of  specific  enactment  lies  the 
further  fact  that  the  representative  body  speaks  for  the  nation. 
But  the  logical  difficulty  presented  by  this  attempt  to  endow 
a  group  of  persons  with  absolute  authority  and  yet  make  them 
responsible  for  its  exercise  is  really  insoluble.  It  is  the  familiar 
philosophical  difficulty  of  an  absolute  which  is  nevertheless 
limited,  and  this  is  neither  more  nor  less  than  a  contradiction 
in  terms.  Nevertheless,  as  was  said  above,  the  theory  of  popular 
sovereignty,  even  as  it  was  stated  by  Locke,  was  grasping  after 
a  principle  of  fundamental  importance  in  the  evolution  of  the 
modern  state.  This  is  the  principle  that  at  bottom  political 
authority  is  not  merely  personal ;  it  does  not  inhere  in  the  will 

>)  Op.  cit.,  Sect.  88. 


XXIV  TRANSLATORS     INTRODUCTION 

of  any  man  or  any  group.  But  this  conception  can  be  developed 
only  by  a  profound  modification  of  the  notion  of  sovereignty. 
In  spite  of  itself  any  theory  of  sovereignty  ends  in  a  personal 
authority,  a  right  inhering  in  some  will  to  impose  its  commands 
upon  other  wills.  It  is  just  this  which  is  at  variance  with  the 
other  notion  of  a  responsibility  for  the  exercise  of  authority. 
No  modern  theory  of  responsibility  can  run  in  terms  of  an 
inherent  superiority  of  will. 

The  relatively  early  establishment  of  Parliamentary  power 
in  England  and  the  fact  that  Parliament  was  relatively  amen- 
able to  public  opinion  are  doubtless  responsible  for  a  phase  of 
English  political  theory  which  has  often  been  remarked,  viz., 
the  fact  that  the  conception  of  the  state  and  its  sovereignty 
has  had  far  less  importance  in  it  than  in  Continental  and 
especially  in  German  political  thought.  It  has  long  been  true, 
as  Professor  Dicey  says,  that  "Englishmen  are  ruled  by  the 
law,  and  by  the  law  alone."  J)  On  the  Continent  authority  re- 
tained much  longer  the  personal  quality  which  was  implied  in 
the  original  notion  of  sovereignty.  For  German  political  thought 
in  particular,  the  inherent  authority  of  the  state  was  an  axiom 
and  the  location  of  this  authority  in  the  will  of  some  assignable 
person  or  persons  was  far  more  plausible,  at  least  during  the  first 
three-quarters  of  the  nineteenth  century,  than  it  was  in  England. 
The  theory  of  popular  sovereignty,  while  not  unknown,  was 
relatively  less  important.  The  constitution  was  more  likely  to 
be  regarded  as  theoretically  a  grant  from  the  monarch  than  as 
an  expression  of  the  sovereign  will  of  the  people,  as  it  was 
conceived  to  be  in  the  United  States.  And  so  long  as  the  prin- 
ciple of  ministerial  responsibility  was  not  accepted,  the  repre- 
sentative body  could  not  attain  the  central  place  in  the  govern- 
ment which  Parliament  held  in  England.  In  effect,  German 
political  thought  before  the  rise  of  the  juristic  theory  of  the 
state,  which  we  shall  reserve  for  treatment  in  a  later  section, 
remained  an  attempt  to  locate  the  assumed  absolute  authority 
of  the  state  in  specific  ruling  persons.  If  the  ultimate  authority 

»)  Op.  tit.,  p.  198. 


TRANSLATORS     INTRODUCTION  XXV 

was  conceived  to  rest  theoretically  with  the  people,  the  effec- 
tive "bearers"  of  this  authority  were  quite  tangible  individuals. 
And  for  not  a  few  political  theorists,  the  monarch  was  not  only 
the  "bearer"  but  the  very  personification  of  political  authority. 
Thus  von  Seydel  says,  "The  monarch  is  not  an  organ  of  the 
state;  he  is  the  ruler  or  sovereign  over  it."  "The  royal  authority 
does  not  rest  upon  the  constitution;  the  constitution  rests  upon 
the  royal  authority."  And  Bornhak,  "The  whole  power  of  the 
state  is  the  power  of  the  prince  and  all  constitutional  law  is  the 
law  of  the  prince."  l) 

Nevertheless  the  attempts  to  locate  sovereignty  grew  con- 
stantly more  difficult.  This  was  due  mainly  no  doubt  to  the 
fact  that  the  persistent  trend  of  political  institutions  was  away 
from  personal  authority.  More  and  more  the  representative  as- 
sembly made  good  its  claim  to  a  control  over  administrative 
officials.  Statutes  became  less  a  limitation  upon  the  competence 
of  officials  and  more  the  basis  of  their  competence.  The  power 
of  the  king  to  make  statutes  dependent  upon  his  sanction  fell 
more  and  more  into  abeyance.  The  doctrine  that  authority  can 
be  traced  to  its  source  in  assignable  persons  having  a  pre-emi- 
nent status  became  less  and  less  in  accord  with  the  facts  of 
government  as  actually  carried  on  by  the  modern  state.  More- 
over, the  growing  complexity  of  the  state  increased  the  diffi- 
culty. The  attempt  to  locate  an  indivisible  sovereignty  in  the 
federal  state  was  quite  hopeless  and  yet  logic  demanded  that 
absolute  authority  should  be  by  its  very  nature  indivisible. 
Sovereignty  could  not  be  divided  without  destroying  the  integ- 
rity of  the  conception,  but  if  it  were  not  divided,  political 
theory  could  not  be  made  to  reflect  political  fact  even  passably. 
The  essentially  personal  nature  of  the  conception  demanded 
that  it  should  be  the  attribute  of  some  discoverable  being,  and 
yet  in  the  federal  state  especially  it  could  not  be  located  in  any 
single  being. 

»)  Von  Seydel,  Bayerisches  Staatsrecht,  1884,  Vol.  I,  pp.  352  ff. ;  Bornhak,  Preus- 
$isches  Staatsrecht,  1884,  p.  64.  The  passages  quoted  are  taken  from  Professor 
Krabbe's  Lehre  der  Rechtssouverdnitdt,  Section  12,  where  German  theories  of  con- 
stitutional law  before  the  juristic  theory  are  dealt  with  more  at  length. 


XXVI  TRANSLATORS     INTRODUCTION 

The  difficulty  was  felt  wherever  the  federal  form  arose,  in 
Germany  as  well  as  in  the  United  States.  Every  American  is 
familiar  with  the  confusion  that  the  theory  of  sovereignty  fell 
into  when  it  was  applied  to  the  explanation  of  our  government. 
The  long  controversy  over  the  question  whether  sovereignty  in 
this  country  is  vested  in  the  federal  state  or  in  the  member  states, 
or  is  divided  between  them,  has  occasioned  more  practical 
and  theoretical  difficulty  and  has  been  the  subject  of  more 
theorizing  than  any  other  in  our  political  history.  Even  if  it  be 
assumed  that  sovereignty  is  an  attribute  of  the  federal  state  and 
that  the  member  states  are  not  sovereign,  it  is  still  impossible 
to  discover  the  seat  of  this  sovereignty.  It  certainly  is  not  to  be 
found  in  Congress  or  in  the  President.  Attempts  have  been 
made  to  fix  it  in  the  Supreme  Court,  but  a  body  which  is  ap- 
pointed by  the  President  and  Senate  and  whose  members  are 
removable  by  an  impeachment  process  instituted  by  the  House 
of  Representatives,  which  possesses  no  independent  financial 
support,  and  the  execution  of  whose  decrees  must  ultimately 
depend  upon  the  executive  branch  of  the  government  can 
scarcely  be  described  as  sovereign.  Nor  is  the  attempt  to  locate 
the  sovereign  in  a  national  constitutional  convention  more  satis- 
factory. A  body  which  has  met  only  once  in  the  history  of  the 
country,  a  century  and  a  third  ago,  and  whose  work  was  then 
not  legally  valid  until  it  had  been  ratified  by  other  bodies  in  the 
several  states,  is  certainly  not  sovereign  in  any  intelligible 
sense.  Nor  is  it  more  conducive  to  clarity  to  vest  sovereignty  in 
"the  amending  process,"  that  is,  in  two-thirds  of  each  house  of 
Congress  and  three-fourths  of  the  state  legislatures.  Can  a  pro- 
cess be  sovereign  ?  And  a  process  which  takes  place  only  occa- 
sionally and  requires  the  co-operation  of  seventy-four  represent- 
ative bodies?  In  fact,  all  that  can  be  said  is  that,  "By  whom- 
soever, or  whatsoever  body,  the  will  of  the  State  is  expressed, 
and  law  created,  there  we  have  Sovereignty  exercised."  l)  But 
this  merely  re-affirms  the  general  theory.  Sovereignty  mani- 


»)  W.  W.  Willoughby,  The  Nature  of  the  State,  pp.  302  f . 


TRANSLATORS     INTRODUCTION  XXVII 

festly  resides  in  no  single  agency  of  the  federal  state  and  there- 
fore American  political  theory  has  generally  taken  refuge  in 
some  vague  notion  that  sovereignty  inheres  in  "the  people." 
This  may  serve  to  cover  up  the  problem  but  it  solves  nothing. 
For  if  "the  people"  means  merely  the  whole  body  of  citizens, 
this  is  a  thoroughly  amorphous  body  which  has  no  legal  or  polit- 
ical significance ;  all  that  can  be  meant  is  that  government  is 
somehow  responsible  for  its  use  of  authority.  If  on  the  other 
hand  "the  people"  means  the  voters,  the  difficulties  are  similar 
to  those  which  attend  the  identification  of  any  other  governing 
organ  with  the  sovereign.  The  voters  do  not  form  a  unified  body 
having  a  collective  capacity  and  in  any  case  the  qualifications 
of  voters  are  settled  by  statute  or  constitution. 

All  these  attempts  to  fix  sovereignty  in  a  particular  element 
of  the  state,  —  state-organ  theories  of  sovereignty,  as  they  have 
been  called,  —  are  futile.  In  the  modern  state,  and  particularly 
in  the  federal  state,  it  is  not  possible  to  trace  authority  to  a 
single  fountain-head  in  an  assignable  group  of  persons  or  func- 
tionaries. The  complexity  of  the  political  structure  forbids 
this,  but  behind  the  mere  proliferation  of  organs  lies  the  sub- 
stantial fact  that  political  authority  in  the  modern  state  is  not 
personal.  Men  have  ceased  to  think  in  terms  of  a  hierarchy  of 
authoritative  wills.  The  modern  political  structure  has  devel- 
oped along  different  lines.  Hence  the  attempt  to  find  a  tangible 
sovereign  is  nothing  but  an  attempt  to  force  modern  political 
institutions  into  a  mold  of  thought  which  applied  to  an  alto- 
gether different  state  of  the  facts.  The  last  generation  brought 
a  reaction  in  German  political  science  against  these  state-organ 
theories.  The  attempt  to  locate  sovereignty  in  any  specific 
organ  was  abandoned  and  the  view  was  adopted  that  sover- 
eignty is  an  attribute  only  of  the  state  itself.  This  theory  of 
the  juristic  personality  of  the  state  will  be  considered  in  a  later 
section.  Before  taking  up  this  question,  however,  it  will  be  well 
to  point  out  another  class  of  difficulties  encountered  by  the 
theory  of  sovereignty  in  respect  to  the  relations  between  states. 


XXVIII  TRANSLATORS     INTRODUCTION 

II.      SOVEREIGNTY    AND    INTERNATIONAL    LAW 

While  the  theory  of  sovereignty  met  with  serious  difficulties 
in  its  attempt  to  explain  the  internal  organization  of  the  state, 
it  was  menaced  from  without  by  the  development  of  interna- 
tional law.  The  doctrine  of  sovereignty,  as  we  have  seen,  devel- 
oped at  the  time  when  the  national  state  was  emerging  from 
the  welter  of  conflicting  jurisdictions  which  was  typical  of  the 
Middle  Ages.  It  was  an  accurate  explanation  of  the  condition 
in  which  the  national  state  found  itself  when,  through  the 
agency  of  absolute  monarchy,  it  had  succeeded  in  throwing  off 
all  dependence  upon  the  Empire  and  Papacy  and  in  subjecting 
to  its  complete  control  the  various  classes  and  estates  within 
its  borders.  The  national  states  of  Europe  at  the  beginning 
of  the  seventeenth  century  were  in  fact  sovereign.  But  there 
began  immediately  to  develop  a  system  of  rules  which  the  states 
themselves  recognized  as  binding  in  their  relations  with  one 
another.  International  law,  which  previously  had  been  non- 
existent, rapidly  developed  a  system  of  control  over  the  mem- 
bers of  the  "family  of  nations."  What  was  the  nature  of  this 
body  of  rules,  obedience  to  which  was  recognized  as  the  duty 
of  each  state  ?  Grotius,  who  first  attempted  a  formulation  of 
these  rules,  called  them  "law"  and  derived  them  from  nature, 
as  other  rules  were  derived  from  the  law  of  nature.  The  term 
"international  law"  came  to  be  firmly  fixed  in  common  usage. 
The  Austinian  School  of  Jurisprudence,  to  be  sure,  were  aware 
that  international  law  could  not  be  brought  within  their  defini- 
tion of  law  as  the  command  of  a  sovereign ;  for  them  interna- 
tional law  was  a  branch  of  morality  rather  than  of  law.  It  rested 
upon  the  consent  and  agreement  of  the  various  states,  not  upon 
the  sovereign  will  of  any  one  state.  Moreover,  it  was  not  enforce- 
able by  pains  and  penalties ;  it  did  not  possess  effective  sanctions. 
Hence,  though  it  was  doubtless  morally  binding  upon  states 
which  had  accepted  it,  it  lacked  the  essential  quality  of  law. 
This  view  was  never  current  on  the  Continent,  but  in  England 
and  America  it  obtained  wide-spread  if  not  general  acceptance. 


TRANSLATORS     INTRODUCTION  XXIX 

The  remarkable  expansion  of  international  law  since  the 
middle  of  the  nineteenth  century,  and  especially  the  begin- 
nings of  a  real  international  organization,  have  made  the  prob- 
lem of  its  nature  one  of  serious  importance  to  students  of 
legal  philosophy  and  political  science.  The  Austinian  definition 
of  law  has  been  recognized  as  altogether  too  narrow.  Studies 
by  Sir  Henry  Sumner  Maine  revealed  numerous  systems  of  lavr 
which  existed  without  any  mandate  by  the  state  and  were  en- 
forced by  other  means  than  penalties  inflicted  in  the  courts. 
Indeed,  as  Mr.  Elihu  Root  has  pointed  out,  obedience  to  our 
ordinary  private  and  criminal  law  is  enforced  more  by  the 
social  sanctions,  the  pressure  of  public  opinion  and  the  oppro- 
brium to  which  the  law-breaker  subjects  himself,  than  by  the 
fear  of  fine  or  imprisonment.  A  definition  of  law  which  excludes 
such  fundamental  principles  of  the  English  Constitution  as 
that  the  ministry,  upon  an  adverse  vote  by  the  House  of  Com- 
mons, must  either  resign  or  appeal  to  the  electorate,  is  clearly 
too  restricted.  This  rule,  though  a  well  established  principle  of 
the  English  Constitution,  is  in  no  way  enforceable  through  the 
courts;  it  finds  its  sanction  only  in  a  general  consensus,  a 
public  opinion,  but  this  sanction  is  entirely  effective. 

It  is  a  necessary  corollary  of  the  strict  doctrine  of  state 
sovereignty  that  all  members  of  the  family  of  nations  are  on 
an  absolute  parity.  The  great  powers  and  the  small  states 
alike  occupy  positions  of  complete  equality  in  international 
relations.  Anything  like  the  subordination  of  some  to  others  is 
altogether  incompatible  with  their  character  as  sovereign  enti- 
ties. But  the  actual  development  of  international  relations  be- 
lies this  theory.  What  have  come  to  be  known  as  the  great 
powers  have  assumed  a  greater  and  greater  control  over  the 
entire  field  of  international  affairs,  until  their  privileged  posi- 
tion has  come  to  be  recognized  definitely  in  the  Covenant  of  the 
League  of  Nations.  The  old  doctrine  of  state  equality  is  clearly 
a  fiction.  But  if  states  are  not  all  equal,  if  some  are  superior  and 
some  inferior,  what  becomes  of  the  doctrine  of  sovereignty? 

Furthermore,    as  an  effective   international  organization 


XXX  TRANSLATORS     INTRODUCTION 

takes  form,  it  is  becoming  evident  that  even  the  great  powers 
are  subject  to  a  control  that  does  not  rest  upon  their  voluntary 
acquiescence.  There  is  in  fact  an  international  law,  which  is 
imposed  upon  states,  large  and  small,  from  above.  Its  mandates 
are  not  enforced  by  the  ordinary  pains  and  penalties  of  fine 
and  imprisonment,  but  by  the  same  kind  of  sanctions  as  those 
which  guarantee  many  of  the  principles  of  the  English  Consti- 
tution, the  sanction  of  public  opinion.  International  law  is  a 
body  of  rules  of  conduct  governing  the  relations  of  states,  not 
derived  from  their  voluntary  agreement  but  from  the  same 
source  as  all  other  law,  and  not  dependent  upon  their  voluntary 
consent  for  its  effectiveness  but  enforced  by  the  public  opinion 
of  the  world.  It  is  obvious  that  the  mere  existence  of  such  a 
body  of  rules  is  incompatible  with  the  doctrine  of  sovereignty. 
It  is  safe  to  assume  that  the  more  extended  and  the  more 
effective  such  law  becomes,  the  more  completely  the  doctrine  of 
state  sovereignty  will  be  undermined. 

III.      THE   STATE  AS  A  JURISTIC   PERSON 

We  saw  at  the  end  of  Section  II  how  the  state-organ  the- 
ories of  sovereignty  fell  into  disrepute  because  no  theory  of 
political  organization  on  this  foundation  could  be  made  to 
agree  with  the  facts  of  government  as  actually  carried  on.  We 
turn  now  to  the  theory  of  the  juristic  personality  of  the  state, 
which  was  an  attempt  to  meet  the  difficulties  encountered  by 
the  older  type  of  doctrine. 

Ground  was  broken  for  the  theory  of  juristic  personality  by 
von  Gerber  as  early  as  1865.  In  the  hands  of  Laband,  Rosin, 
Preuss,  and  Jellinek  it  became  the  prevailing  German  theory 
of  the  state.  x)  The  theory  regards  all  attempts  to  locate  sov- 
ereignty in  specific  organs  of  the  state  as  fallacious.  They  are 

*)  Von  Gerber,  Grundz&ge  eines  Systems  des  deutschen  Staatsrechts,  Ed.  1,  1865; 
Paul  Laband,  Staatsrecht  des  deutschen  Reichs,  Ed.  1,  1876;  H.  Rosin,  Souverdnitdt, 
Stoat,  Gemeinde,  Selbstverwaltung,  Hirths  Annalen  des  deutschen  Reichs,  1883; 
Hugo  Preuss,  Gemeinde,  Stoat,  Reich  als  Gebietskorperschaften,  1889;  Georg  Jelli- 
nek, Allgemeine  Staatslehre,  Ed.  1,  1900.  The  theory  of  the  juristic  personality  of 
the  state  is  discussed  by  Professor  Krabbe,  Die  Lehre  der  Rechtssouverdnitdt, 
Section  13. 


TRANSLATORS     INTRODUCTION  XXXI 

due  to  the  persistence  of  an  a  priori  and  deductive  method  in 
political  science.  Starting  from  sovereignty  as  a  first  principle, 
the  older  theory  sought  to  elaborate  this  conception  in  a  sche- 
ma of  "powers,"  logically  essential  to  the  state  as  such.  The 
state  is  thus  a  unit  which  necessarily  manifests  itself  in  certain 
powers  of  government ;  these  powers  reside  in  specific  agencies 
all  of  which  derive  their  authority  from  a  single  central  reser- 
voir of  power.  What  is  assumed,  therefore,  is  an  hierarchical 
organization  of  government  according  to  a  logical  scheme  by 
which  all  the  powers  of  government  can  be  brought  forth  from 
the  idea  of  the  state.  Hence  political  theory  becomes  an  at- 
tempt to  locate  the  ultimate  source  of  authority  and  to  trace 
out  the  channels  by  which  it  flows  from  its  source  to  the  final 
agencies  by  which  it  is  exercised. 

The  juristic  theory  wholly  rejects  this  logical  schematism. 
It  recognizes  that  the  powers  exercised  by  government  vary 
with  time  and  place,  that  the  agencies  in  which  government 
is  organized  are  matters  of  historical  circumstance  and  there- 
fore from  the  point  of  view  of  logic  largely  accidental.  There 
are  no  functions  which  are  of  necessity  attributed  to  govern- 
ment, semper,  ubique  et  ab  omnibus.  The  study  of  political  organ- 
ization is  therefore  empirical  throughout.  This  empirical  study, 
however,  is  controlled  by  the  intellectual  necessity  of  assuming 
the  unity  of  the  subject  of  the  study.  The  state,  therefore,  must 
beconceived  as  a  unity,  this  unity  being,  as  Jellinek  says,  "a  form 
ofsynthesis  necessarily  imposed  upon  us  by  our  consciousness."1) 

But  this  necessary  unity  does  not  require  that  authority 
shall  be  concentrated  in  any  assignable  person  or  organ;  it 
points  rather  to  a  unity  behind  the  empirical  agencies  of  gov- 
ernment. This  is  the  state  itself,  a  collective  person,  to  which 
alone  ultimate  authority  belongs  and  whose  being  consists 
solely  in  the  fact  that  it  is  the  repository  of  political  and  legal 
authority.  The  various  agencies  of  government,  including  the 
crown  or  the  representative  assembly  or  the  electorate,  are 
merely  organs  through  which  the  corporate  personality  of  the 

')  Staatslehre,  Ed.  2,  p.  163. 


XXXII  TRANSLATORS     INTRODUCTION 

state  expresses  its  will  and  performs  its  functions.  As  Laband 
puts  it:  "From  the  conception  of  the  state  as  a  juristic  person 
in  the  eye  of  public  law,  it  follows  that  the  possessor  of  the 
state's  authority  is  the  state  itself ....  The  personality  of  the 
state  as  the  possessor  of  the  sovereign  rights  of  government 
disappears  if  the  whole  of  these  rights,  the  state's  authority,  be 
imputed  not  to  the  state,  the  organic  community,  but  to  the 
princes  or  the  parliament  or  both  together  or  any  conceivable 
being  other  than  the  state  itself."  l) 

The  theory  of  the  juristic  personality  of  the  state  solves  the 
problem  of  locating  sovereignty  by  cutting  the  Gordian  knot. 
Sovereignty  is  identified  with  no  agency  of  government.  Gov- 
ernment is  fundamentally  different  from  the  state,  since  the 
former  is  a  collection  of  functionaries  while  the  latter  is  a 
hypothetical  entity  which  embodies  the  political  aspect  of  the 
community  or  nation.  It  will  readily  be  seen  that  the  substantial 
or  personal  aspect  of  sovereignty  thus  becomes  highly  rarined. 
The  conception  of  sovereignty  begins  its  career  as  the  inherent 
attribute  of  the  prince;  the  state  is  scarcely  distinguishable 
from  the  monarch.  Sovereignty  is  his  necessary  attribute ;  the 
monarch  is  the  substance  in  which  this  attribute  inheres.  With 
the  passing  of  the  absolute  monarchy  the  attribute  is  detached ; 
it  becomes  a  wandering  adjective  seeking  a  substantive  to 
which  it  can  attach  itself.  But  all  the  discoverable  substantives 
of  modern  government  reject  it,  or  fail  to  establish  such  a 
monopoly  over  it  that  real  inherence  can  be  shown.  In  the  end 
there  is  no  solution  except  to  permit  the  adjective  to  set  up  as 
a  substantive  on  its  own  account.  Sovereignty  inheres  only  in 
the  state,  and  the  state  is  merely  a  personification  of  sover- 
eignty. The  personality  of  the  state  is  exhausted  in  the  attri- 
bute, since  the  state-person  has  no  reality  except  as  a  juristic 
or  political  entity. 

As  a  matter  of  fact,  however,  the  theory  of  juristic  person- 
ality has  somewhat  more  important  philosophical  bear- 


')  Staatsrecht  des  deutschen  Reichs,  Ed.  4,  Vol.  I,  p.  90.  Quoted  by   Krabbe. 
Recktssouvcrdnitdt,  pp.   1 1 1  f . 


TRANSLATORS     INTRODUCTION  XXXIII 

ings  than  is  suggested  by  this  criticism.  Thus  it  should  be  noted 
that  Jellinek  does  not  regard  sovereignty  as  the  most  impor- 
tant aspect  of  juristic  personality.  He  finds  the  essence  of 
juristic  personality  in  the  capacity  which  a  collectivity  may 
have  of  exercising  a  will  of  its  own,  distinguishable  from  the 
individual  wills  of  its  members.  Such  a  collectivity  becomes  a 
possible  subject  of  rights  and  obligations  and  is  for  this  reason 
a  juristic  person.  Accordingly  he  regards  it  as  a  matter  of  detail 
whether  the  collective  will  is  supreme,  i.e.,  sovereign.  The 
essential  characteristic  of  the  state  is  not  supremacy  but  the 
fact  that  its  powers  are  self-derived  or  inherent  in  it  as  a  col- 
lectivity, rather  than  delegated  to  it  by  some  other  juristic 
person.  Thus  he  concludes  that  there  are  both  sovereign  and 
non-sovereign  states.  The  members  of  the  American  federal 
union  are  states  because  they  are  juristic  persons  with  inherent 
powers;  they  are  not  sovereign,  however,  since  their  powers, 
though  not  derived  from  the  federal  state,  are  exercised  in 
subordination  to  the  sovereign  will  of  that  state.  In  deference 
to  the  federal  principle  he  thus  gives  up  one  of  the  traditional 
attributes  of  statehood ;  the  power  of  the  state  is  inherent  and 
indivisible  but  not  necessarily  supreme.  For  Jellinek  the  state 
is  the  embodiment  of  inherence  of  power  rather  than  of  sov- 
ereignty. It  is  manifest  that  this  theory,  in  attempting  to  meet 
the  facts  of  federal  statehood,  runs  the  risk  of  proving  too 
much.  For  there  are  in  modern  society  a  great  number  of  col- 
lectivities which  exercise  a  will  of  their  own  and  which  can 
scarcely  be  said  to  derive  this  capacity  in  all  instances  from 
the  particular  collectivity  known  as  the  state.  We  shall  return 
to  this  point  in  a  later  section  dealing  with  some  recent  theories 
of  corporations  and  the  bearing  of  these  theories  upon  the 
theory  of  the  state. 

The  juristic  theory  of  the  state,  and  particularly  Jellinek's 
theory  of  the  state  as  inherence  of  power,  is  mainly  signif- 
icant because  it  is  symptomatic  of  a  profound  change  in  point 
of  view  which  affected  almost  every  department  of  social  and 
ethical  philosophy  during  the  latter  part  of  the  nineteenth 

The  modern  idea  of  the  State.  in 


XXXIV  TRANSLATORS     INTRODUCTION 

century.  The  struggles  of  political  scientists  to  identify  sov- 
ereign authority  with  tangible  persons  or  agencies  were  merely 
a  phase  of  that  individualism  which  prevailed  throughout  all 
the  social  sciences  at  an  earlier  date.  Every  social  phenomenon 
had  to  be  attached  to  specific  persons  simply  because  the  pre- 
sumptions of  the  social  sciences  left  no  other  real  being  to 
which  they  could  be  attached.  Social  good  was  the  summated 
happiness  of  discrete  individuals.  Obligation  was  "the  necessity 
of  doing  or  omitting  anything  in  order  to  be  happy."  Social 
motives  were  the  concealed  egoism  of  individuals  acting  either 
from  enlightened  self-interest  or  deluded  by  an  association  of 
ideas  into  the  belief  that  their  happiness  was  identified  with 
the  happiness  of  others.  The  state  and  society  were  groups  of 
individuals,  each  motived  by  the  internal  force  of  his  own  pas- 
sions or  will,  and  held  together  by  relations  of  a  generally  con- 
tractual nature  which  could  be  justified  only  by  the  fact  that 
they  ministered  to  private  happiness.  Social  relations  were  con- 
ceived to  enter  in  no  intimate  way  into  the  making  of  individ- 
ual personality.  From  this  point  of  view  the  law  could  be 
nothing  except  the  will  either  of  those  individuals  who  were 
as  a  matter  of  fact  powerful  enough  to  impose  their  will  upon 
others,  or  the  will  of  individuals  who  had  by  consent  received 
a  contractual  right  to  direct  the  conduct  of  others.  So  long  as 
this  conception  prevailed,  political  theory  could  not  abandon 
the  effort  to  point  out  sovereign  persons,  unless  it  were  pre- 
pared to  admit  its  utter  vagueness. 

The  case  is  different,  however,  if  these  presumptions  of  indi- 
vidualism are  abandoned,  as  they  were  abandoned  or  funda- 
mentally modified  in  the  latter  part  of  the  nineteenth  century. 
The  Hegelian  philosophy  and  among  English  speaking  peoples 
its  modern  or  Neo-Hegelian  equivalent,  the  historical  study 
of  law  and  political  institutions,  the  progress  of  biological 
science,  and  the  rise  of  a  more  adequate  social  psychology  all 
contributed  to  produce  the  consciousness  of  the  social  group 
as  something  more  than  a  number  of  individuals  inhabiting 
the  same  territory.  Political  science  was  affected  by  the  same 


TRANSLATORS     INTRODUCTION  XXXV 

trend  of  thought.  The  theory  of  natural  rights  and  of  the  social 
contract  were  utterly  swept  away  in  the  reaction  which  fol- 
lowed the  French  Revolution.  The  Utilitarian  theory  of  laissez 
faire,  which  was  fundamentally  similar  in  its  chief  presump- 
tions, suffered  a  negative  criticism  which  destroyed  its  scien- 
tific pretensions,  even  before  the  tendency  of  public  policy  had 
obviously  begun  to  follow  another  line.  So-called  "organismic" 
theories  of  the  state  and  of  law  began  to  make  their  appearance 
and  no  doubt  served  a  good  purpose  in  their  day,  though  the 
analogy  of  the  state  to  an  organism  is  at  least  as  likely  to  mis- 
lead as  to  enlighten.  If  political  science  must  use  analogy,  that 
between  the  state  and  a  person  is  undoubtedly  better,  though 
it  may  well  be  hoped  that  we  have  at  last  reached  a  stage  in 
which  political  society  can  be  studied  for  what  is  is,  a  social 
or  communal  phenomenon,  without  the  use  of  any  analogy.  It 
is  sufficient  for  our  purposes,  however,  to  point  out  that  the 
theory  of  juristic  personality  was  the  culmination  of  the  social- 
izing tendency  in  political  theory,  at  least  so  far  as  that  theory 
had  gone  by  the  end  of  the  last  century. 

There  was  still  another  motive  which  contributed  to  the 
force  of  the  theory  of  juristic  personality.  It  seeks  not  only  to 
avoid  the  difficulties  of  identifying  the  sovereign  with  particu- 
lar persons  or  bodies,  but  also  to  emphasize  the  juristic  nature 
of  the  state's  authority.  In  other  words,  it  carries  forward  the 
ideal  which  we  have  already  noted  in  the  theory  of  popular 
sovereignty,  the  ideal  of  an  authority  which  is  more  than  the 
expression  of  an  arbitrary  will.  Thus  among  English  political 
scientists,  Mr.  Ernest  Barker  has  urged  the  personality  of  the 
state  as  a  device  for  making  the  state  itself  legally  responsible 
for  the  torts  of  its  agents.  x)  The  theory  urges  that  the  entire 
nature  of  the  state's  personality  is  juristic ;  it  has  no  being  aside 
from  its  relation  to  law.  Its  administrative  acts  may  not  be 
arbitrary  commands  but  must  be  carried  out  within  the  system 
of  law  which  the  state  itself  prescribes  and  upholds.  Hence  the 


»)  "The  Rule  of  Law,"  Political  Quarterly,  No.  2,  May,  1914,  p.  117. 


XXXVI  TRANSLATORS     INTRODUCTION 

theory  has  emphasized  what  its  German  authors  call  the  "legal 
state"  (Rechtsstaat}.  Laband  states  the  principle  as  follows: 
"The  state  can  require  no  performance  and  impose  no  restraint, 
can  command  its  subjects  in  nothing  and  forbid  them  in  noth- 
ing, except  on  the  basis  of  a  legal  prescription."  l)  Similarly 
Otto  Mayer  emphasizes  the  subordination  of  executive  to  legis- 
lative power.  Hugo  Preuss  in  particular  stresses  the  legal  nature 
of  the  state's  authority.  Following  Rosin  he  defines  rulership 
(Herrschaff)  as  the  "legal  subordination  or  superordination  of 
personalities."  2)  The  will  of  the  collective  personality  is  legally 
superior  to  that  of  its  members.  The  relation  between  the  state 
and  its  members  is  a  legal  relation ;  the  state  has  duties  toward 
them  and  they  have  rights  as  against  the  state.  "If  the  view  of 
the  state  as  a  personality,  that  is,  as  a  juristic  entity,  be  made 
the  basis  of  the  entire  theoretical  explanation  of  the  state,  it 
becomes  impossible  to  separate  the  state  from  law  even  in 
thought."  s)  Nothing  can  be  more  explicit  than  Preuss'  rejec- 
tion of  anything  like  an  arbitrary  creative  power  of  the  state 
over  law.  "When  the  state  makes  law  at  the  present  time,  it 
merely  makes  explicit  the  force  which  resides  in  the  notion  of 
right ;  it  declares  latent  law  and  does  not  make  law  out  of  noth- 
ing." *)  But  in  fact  Preuss  is  not  perfectly  consistent  in  hold- 
ing to  the  proposition  that  the  relation  of  the  state  to  its 
members  is  a  legal  relation,  though  he  asserts  that  this  proposi- 
tion is  the  essential  principle  of  the  legal  state.  Upon  occasion 
he  falls  back  upon  a  natural  subordination  of  parts  to  the  or- 
ganic whole,  which  leaves  it  an  open  question  whether  the  rule 
of  the  state  is  necesarily  the  rule  of  law.  The  fact  is  that  the 
theory  of  juristic  personality,  though  it  makes  the  authority 
of  the  state  less  strictly  personal  than  any  of  the  preceding 
theories  of  sovereignty,  is  not  able  to  arrive  fully  at  the  ideal 


')  Staatsrccht  des  deutschen  Reicks,  Ed.  4,  Vol.  II,  p.  173. 
*)  Gemeinde,  Stoat,  Reich  als  Gebietskorperschaften,  p.  180;  Cf.  Krabbe,  Rechts- 
souverdnitdt,  pp.  114  ff . 
*)  Op.  cit.,  p.  202. 
*)  Op.  cit.,  p.  206 


TRANSLATORS'  INTRODUCTION         xxxvn 

of  a  state  which  is  lawful  through  and  through.  Wherever 
sovereignty  is  asserted,  —  even  the  sovereignty  of  a  hypotheti- 
cal person  who  has  no  function  save  to  declare  law,  —  the  ar- 
gument is  open  to  the  construction  that  law  is  made  by  virtue 
of  its  declaration.  State  and  law  are  identical,  as  Preuss  argues. 
But  is  this  because  the  state  declares  latent  law  or  because 
what  the  state  declares  is  explicit  law?  The  latter  view  is  ob- 
viously one  which  the  theory  of  juristic  personality  wishes  to 
avoid.  But  on  the  other  hand,  if  the  law  is  already  real,  though 
latent,  wherein  is  the  supreme  importance  of  the  sovereign 
state  as  the  mere  declarer  of  law?  Or  to  state  the  difficulty 
otherwise,  if  the  relation  between  the  state  and  the  individual 
is  only  that  of  part  and  whole,  analogous  to  that  between  an 
organism  and  its  members,  what  guarantee  is  there  that  the 
relation  is  a  legal  one  or  that  control  will  express  itself  through 
rules  of  law  ?  This  difficulty  goes  to  the  root  of  the  conception 
of  sovereignty  itself.  A  sovereign  can  mean  nothing  except  a 
being  who  is  inherently  authoritative  and  whose  will  has  the 
right  to  rule  simply  because  it  is  his  will.  Logically  this  fact 
cannot  be  altered  by  the  further  fact  that  the  sovereign  being 
is  a  corporate  person.  But  if  the  law  is  authoritative  because 
it  issues  from  an  inherently  authoritative  person,  the  asser- 
tion that  the  person  utters  only  law  is  nothing  but  an  identical 
proposition.  Law  is  the  will  of  the  sovereign  and  the  will  of 
the  sovereign  is  law,  as  Hobbes  long  since  asserted.  But  this  is 
assuredly  not  what  the  theory  of  juristic  personality  means  to 
assert.  Its  whole  point  is  that  in  the  modern  state  law  is  not 
a  fiat  of  will  but  a  rule  of  right. 

The  same  unclearness  regarding  first  principles  reappears  in 
the  final  statement  of  the  theory  of  juristic  personality  by 
Jellinek.  The  state  by  definition  possesses  for  him  an  "inherent, 
original,  underived  power  to  enforce  its  own  will  against 
other  wills."  Nevertheless  he  attempts  to  justify  the  right  of 
the  state  to  use  compulsion  as  necessary  in  the  interest  of  law. 
Indeed  he  insists  that  the  two  questions  coincide;  the  basis 
of  the  state's  authority  and  the  basis  of  the  law's  authority  are 


XXXVIII          TRANSLATORS     INTRODUCTION 

essentially  one.  But  this  argument  is  manifestly  circular.  The 
underived  authority  of  the  state  is  made  to  serve  as  the  basis 
of  the  force  used  in  behalf  of  law,  while  at  the  same  time  it  is 
justified  as  necessary  to  uphold  the  law.  The  right  to  exercise 
authority  must  be  assumed  somewhere.  If  it  really  inheres  in 
the  state,  there  is  no  reason  to  justify  it  by  appealing  to  law. 
On  the  other  hand,  if  the  law  itself  is  authoritative,  there  is  no 
need  to  assume  an  ultimate  authority  belonging  to  the  state, 
for  the  authority  exercised  by  the  state  must  come  from  law. 
It  is  at  this  point  that  the  problem  of  political  theory  is  at- 
tacked by  Professor  Krabbe  in  his  earlier  work,  Die  Lehre  der 
Rechtssouverdnitdt.  Throughout  the  entire  history  of  the  theory 
of  sovereignty,  including  its  latest  statement  by  the  school  of 
juristic  personality,  Professor  Krabbe  finds  a  dualism  of  first 
principles.  On  the  one  hand,  the  authority  of  the  state  is  ac- 
cepted as  a  first  principle.  The  dominion  of  the  state  over  its 
subjects  is  asserted  to  be  inherent  in  its  own  essential  nature 
and  hence  its  right  to  rule  is  held  to  be  axiomatic.  No  reason  for 
this  right  can  or  need  be  sought,  since  authority  belongs  to  the 
state  by  definition.  It  is  a  simple  deduction  from  this  principle 
that  law  is  the  will  of  the  state  expressed  through  organs  which 
the  state  itself  creates  for  this  purpose.  A  political  theory  de- 
veloped consistently  from  this  point  of  view  would  at  least  pos- 
sess unity  and  in  fact  such  theories  have  existed  in  the  past. 
But  even  at  the  height  of  monarchical  absolutism  such  a  theory 
did  not  fully  fit  the  facts  for,  as  we  have  seen,  the  ruler  did  not 
in  fact  possess  the  power  to  alter  the  common,  private  law  at 
will.  In  modern  times  the  trend  of  the  constitutional  state  has 
been  steadily  against  the  exercise  of  an  arbitrary  free  will  such 
as  the  theory  of  sovereignty  implies.  The  so-called  organs  of 
the  state,  —  the  various  classes  of  officials  and  branches  of 
government,  —  came  more  and  more  to  owe  their  competence 
to  law.  They  came  to  be  designated  in  ways  prescribed  by  law ; 
the  powers  they  exercise  came  to  be  defined  by  law,  and  they 
themselves  came  to  be  responsible  under  the  law  for  their  acts. 
Political  thinkers,  including  those  who  framed  the  juristic  the- 


TRANSLATORS     INTRODUCTION  XXXIX 

ory  of  the  state,  were  aware  of  this  tendency  in  affairs  and  were 
alive  to  the  desirability  of  legalizing  official  action.  Accordingly 
they  tended  more  and  more  to  take  the  ground  that  the  state 
itself  is  bound  by  law;  it  could  manifest  its  will  only  through 
law,  by  making  law  or  by  action  in  accordance  with  law.  This 
view,  however,  raises  the  law  itself  to  the  position  of  a  first 
principle  for  political  science.  The  state  is  obliged  to  rule  by 
law,  though  it  had  been  assumed  that  the  law  is  binding  be- 
cause it  is  the  expression  of  the  inherently  authoritative  will 
of  the  state.  The  state  creates  law  but  its  organs  are  the  crea- 
tures and  servants  of  law.  The  contradiction  is  patent  and 
insoluble,  so  long  as  both  positions  are  maintained.  The  theory 
of  juristic  personality  pushes  the  element  of  personal  authority 
as  far  into  the  background  as  possible,  but  it  cannot  entirely 
escape  from  this  implication  of  the  theory  of  sovereignty.  If 
the  authority  of  law  and  that  of  the  state  coincide,  as  Jellinek 
for  example  holds,  the  only  reasonable  position  is  to  assume 
that  law  is  naturally  authoritative  because  of  its  ethical  char- 
acter as  embodying  a  rule  of  right.  From  this  point  of  view  the 
state  itself  is  the  creature  of  law.  Its  various  organs  are  brought 
into  being  by  law;  they  exercise  powers  defined  by  law;  and 
the  authority  thus  exercised  is  an  authority  conferred  upon 
these  organs  by  the  law.  This  is  the  position  taken  by  Professor 
Krabbe  and  called  by  him  the  "theory  of  the  sovereignty  of 
law." 

IV.      THE    PERSONALITY    OF   CORPORATIONS 

By  another  path  other  scholars  have  been  led  to  conclusions 
remarkably  similar  to  those  of  Professor  Krabbe.  In  fact,  the 
theory  of  juristic  personality  proved  to  be  a  two-edged  sword. 
Designed  by  its  authors  to  remove  the  difficulties  of  the  state- 
organ  theories  of  sovereignty,  it  contained  the  germs  of  a  point 
of  view  which  threatens  the  theory  of  sovereignty  itself.  As  we 
have  already  seen  in  the  case  of  Jellinek,  the  emphasis  of  the 
theory  falls  upon  the  corporate  or  organic  conception  of  the 
state  and  upon  what  might  be  called  the  "natural"  subordina- 


XL  TRANSLATORS     INTRODUCTION 

tion  of  the  parts  to  the  whole,  with  only  a  minor  emphasis  upon 
the  supremacy  of  the  collective  person.  The  essence  of  the 
argument  is  that  some  degree  of  authority  inheres  by  nature 
in  the  collective  person  and  that  this  inherent  power  makes  it 
a  state.  The  argument  assumes  that  the  state  is  unique  in  this 
respect ;  legal  authority  resides  ultimately  in  it  and  in  no  other 
kind  of  collectivity  or  corporate  body.  Unless  the  state  is  a 
corporate  body  sui  generis,  the  whole  defense  of  sovereignty 
by  the  theory  of  juristic  personality  is  in  vain.  This  assumption 
has  been  challenged  with  so  great  a  mass  of  evidence  and  by 
authorities  so  weighty  that  the  challenge  constitutes  a  difficul- 
ty of  the  first  order  for  the  theory  of  sovereignty. 

The  issue  was  raised  by  the  exhaustive  discussion  of  the 
legal  theory  of  corporations  in  Professor  Otto  Gierke's  Deut- 
sches  Genossenschaftsrecht  (1868 — 81).  This  work  pretty  thor- 
oughly demolished  the  traditional  theory  that  corporations 
are  personae  fictae,  which  possess  a  corporate  self-identity  only 
in  so  far  as  personality  is  conceded  to  them  by  the  state.  Pro- 
fessor Gierke  showed  that  this  theory  was  the  product  of  glos- 
sators  and  canonists  working  upon  the  rather  meager  texts  of 
the  Digest.  It  was  first  clearly  formulated  by  Innocent  IV, 
who  became  Pope  in  1243  and  who  utilized  it  in  the  conflict 
between  the  Church  and  the  Empire.  The  large  number  of 
cathedral  chapters  and  religious  orders  made  it  necessary  that 
their  status  should  be  settled  in  order  that  their  rights  might 
be  protected  and  their  relation  to  the  Church  made  clear.  Such 
bodies  were  to  be  called  persons  but  their  personality  was  ficti- 
tious; it  was  a  nomen  juris.  Besides  men,  or  natural  persons, 
the  law  recognized  as  subjects  of  proprietary  rights  certain 
fictitious,  artificial,  or  juristic  persons. 

This  doctrine,  however,  ran  counter  to  a  rich  development 
of  Germanic  corporate  life  and  Italianized  Roman  law  was  not 
dominant  in  Germany.  The  "open  air,  oral  tradition  of  the 
unacademic  doomsman"  survived  long  after  the  Roman  law 
was  being  taught  in  the  universities  of  Oxford  and  Cambridge. 
The  Reception  of  the  Roman  law  in  the  fifteenth  century, 


TRANSLATORS     INTRODUCTION  XLI 

however,  resulted  in  the  general  acceptance  of  the  concession 
theory  of  corporate  personality.  In  spite  of  its  incompatibility 
with  certain  facts  of  corporate  self-sufficiency,  it  remained  the 
accepted  theory  of  corporations  until  the  latter  part  of  the 
nineteenth  century,  not  only  upon  the  Continent  but  also  in 
England.  Only  with  the  rise  of  the  Germanist  School  under 
Eichhorn  and  Grimm  was  it  seriously  questioned.  In  combat- 
ting Savigny's  "Roman  theory"  Georg  Beseler,  one  of  the  lead- 
ers of  the  Germanist  movement,  asserted,  "You  will  never 
force  our  German  fellowships  (Genossenschafteri)  into  the  Ro- 
man scheme;  we  Germans  have  had  and  still  have  other 
thoughts  than  yours."  *)  It  was  Gierke,  however,  who  first 
clearly  showed  the  historical  origins  of  the  theory  and  proved 
its  insufficiency. 

Western  society  has  always  been  characterized  by  a  multi- 
tude of  groups,  existing  for  all  imaginable  purposes,  sometimes 
with  and  sometimes  without  the  explicit  recognition  of  the 
state,  but  in  their  entirety  constituting  the  great  mass  of  social 
relations  between  individuals.  In  point  of  bulk  such  relations 
have  always  filled  a  much  larger  place  in  individual  life  than 
those  implied  directly  by  citizenship  in  the  modern  state.  Cit- 
izenship, because  of  the  size  of  the  modern  state,  was  neces- 
sarily a  somewhat  generalized  and  impersonal  relation,  even 
though  it  might  be  backed  by  powerful  sentiments.  Effective 
social  relations  were  largely  in  groups  other  than  the  state. 
Moreover,  it  is  obvious  to  any  careful  student  of  society  that 
the  number  and  importance  of  such  groups  have  increased 
enormously  within  the  last  fifty  years,  The  growth  of  federal 
government,  which  proved  to  be  the  only  practicable  method 
of  forming  political  organizations  on  the  scale  demanded  by 
modern  industrial  and  commercial  relationships,  is  itself  a 
proof  of  the  vitality  of  the  local  group.  The  rapidly  increasing 
size  of  cities  is  an  outstanding  social  phenomenon,  but  mere 
increase  in  size  is  less  significant  than  the  greatly  increased 

*)  Gierke,  Political  Theories  of  the  Middle  Age,  English  translation  and  Intro- 
duction by  F.  W.  Maitland,  p.  xvm. 


XLII  TRANSLATORS     INTRODUCTION 

importance  of  their  functions,  the  enlarged  scope  of  their  pow- 
ers, and  the  independence  of  their  authority  which  size  has 
brought  with  it.  Still  more  typical  of  the  present  day  is  the 
vast  and  growing  number  of  associations  for  economic  and  so- 
cial purposes  which  are  not  local  in  their  character.  Units  of  cap- 
ital and  of  industrial  management  have  grown  not  only  in 
size  but  in  the  effectiveness  of  their  co-operation ;  they  have  ex- 
tended their  organization  not  only  through  the  length  and 
breadth  of  single  states  but  also  across  the  national  boundaries. 
Organizations  of  labor  have  been  forced  into  a  parallel  exten- 
sion in  order  that  they  might  develop  the  strength  to  cope  with 
organizations  of  employers.  Nor  are  these  modern  associations 
invariably  economic  in  purpose.  They  exist  for  the  most  diverse 
aims  and  on  widely  different  scales.  Their  fundamental  condi- 
tion is  a  consciousness  of  common  interest ;  where  such  a  con- 
sciousness exists  an  association  can  arise  which  is  limited  only 
by  the  breadth  of  the  interest  and  the  degree  of  loyalty  it  can 
evoke.  Associations  of  this  sort  have  always  existed  but  at  the 
present  moment  their  enormous  extension  is  a  social  fact  in 
our  European  and  American  civilization  of  first  rate  impor- 
tance. 

Now  collective  or  corporate  units  such  as  these  are  certainly 
not  mere  numbers  of  individuals  standing  in  quasi-contrac- 
tual relations  to  one  another.  The  group  itself  has  ends  which 
it  pursues  with  more  or  less  consistency;  it  has  a  settled  policy 
which  no  individual  can  modify  at  will.  Its  collective  character 
is  as  fixed  as  the  character  of  an  individual.  It  can  assert  collec- 
tive rights  and  assume  collective  obligations.  In  short,  it  has 
the  same  type  of  energy  and  inertia  which  in  the  individual  we 
call  will  or  personality.  Such  groups  are  real  juristic  persons, 
competent  to  possess  legal  rights  and  to  perform  legal  acts.  More- 
over, the  granting  of  a  franchise  by  the  state  neither  creates 
nor  fundamentally  alters  the  essential  nature  of  these  collec- 
tive persons.  Whether  they  happen  to  be  organized  as  corpora- 
tions within  the  restricted  and  rather  artificial  legal  meaning 
of  the  term,  or  whether  they  prefer  to  hold  their  property  un- 


TRANSLATORS     INTRODUCTION  XLIII 

der  a  trusteeship,  or  to  organize  themselves  as  business  part- 
nerships, is  a  legal  technicality  which  has  little  bearing  upon 
their  real  character.  Their  effectiveness  depends  upon  the  so- 
cial bonds  that  unite  their  members  and  upon  the  need  of  hu- 
man nature  for  a  group-life  such  as  they  afford.  The  state  can- 
not make  them;  it  cannot  always  destroy  them.  It  may  recog- 
nize them,  but  in  so  doing  it  merely  recognizes  something  which 
exists  as  a  fact  and  which  is  in  no  sense  produced  by  recogni- 
tion. 

The  significance  of  this  theory  for  political  science  first  be- 
comes apparent  when  it  is  placed  side  by  side  with  the  corpo- 
rate or  juristic  theory  of  the  state.  The  point  was  first  brought 
clearly  to  the  attention  of  English  and  American  students  by 
Professor  F.  W.  Maitland  in  his  translation  of  a  portion  of 
Gierke's  work  which  he  published  in  1900  under  the  title, 
Political  Theories  of  the  Middle  Age.  Professor  Maitland's  In- 
troduction to  this  little  volume  has  been  the  basis  of  a  wide- 
spread discussion  of  sovereignty  which  marks  a  new  tendency 
in  political  theory.  The  pregnant  suggestion  in  this  modern 
theory  of  corporations  is  the  conception  that  the  state  itself 
is  merely  one  form  of  collective  personality.  As  Maitland  says, 
"There  seems  to  be  a  genus  of  which  State  and  Corporation  are 
species.  They  seem  to  be  permanently  organized  groups  of  men ; 
they  seem  to  be  group  units ;  we  seem  to  attribute  acts  and  in- 
tents, rights  and  wrongs  to  these  groups,  to  these  units."  l) 
The  principle  of  the  personality  of  the  state,  therefore,  is  fully 
recognized,  but  it  is  urged  that  this  is  no  unique  quality  of  the 
state.  It  is  a  natural  quality  of  every  human  association  which 
is  held  together  by  an  enduring  social  bond.  There  is  no  single 
corporate  person,  the  state,  from  which  all  other  human  associ- 
ations are  derived.  There  are  multitudes  of  them,  varying  in 
the  closeness  of  their  organization,  the  extent  of  their  control 
over  their  members,  the  permanence  of  their  duration,  and  the 
importance  of  the  ends  served.  Every  individual  is  in  fact  a  mem- 
ber of  many  such  groups,  wluch  may  exist  side  by  side  almost 

')  Op.  cit.,  p.  ix. 


XLIV  TRANSLATORS     INTRODUCTION 

without  relation  or  which  may  on  occasion  become  competi- 
tors for  the  individual's  loyalty.  The  problems  both  of  morality 
and  of  law  are  largely  problems  of  adjusting  the  conflicting 
claims  and  interests  of  such  associations.  The  theory  acts  as  a 
solvent  upon  the  doctrine  of  sovereignty  because  it  is  difficult 
to  perceive  why  the  claims  of  the  state,  as  one  corporate  body 
among  others,  must  inevitably  be  superior  to  those  of  all  other 
bodies. 

This  aspect  of  the  new  theory  has  been  most  emphasized  by 
Professor  John  Neville  Figgis  in  his  Churches  in  the  Modern 
State  (1913)  and  by  Mr.  Harold  J.  Laski  in  his  two  volumes, 
The  Problem  of  Sovereignty  (1917)  and  Authority  in  the  Modern 
State  (1 91 9).  The  former  urges  the  right  of  churches  to  an  auton- 
omous existence ;  the  latter  extends  the  same  right  to  eco- 
nomic groups  such  as  the  organized  personnel  of  an  industry. 
Such  associations  have  a  corporate  personality  independent  of 
the  state.  They  are  one  in  kind  with  the  state  itself  and  like  the 
state  their  existence  is  justified  by  the  fact  that  they  minister 
to  unescapable  human  reeds.  It  is  an  easy  step  to  the  conclu- 
sion that  they  possess  rights  which  the  state  must  not  invade 
and  which  the  state  cannot  take  away. 

It  would  be  an  utter  misconstruction  to  suppose  that  this 
is  merely  a  new  form  of  the  old  argument  for  toleration  and 
that  accordingly  the  claim  made  is  merely  to  a  moral  right  of 
self-determination.  Nor  is  the  argument  intended  to  be  a 
refoi  mulation  of  the  theory  of  natural  rights,  the  rights  in  this 
case  of  a  group-personality  rather  than  of  an  individual.  The 
argument  assumes  the  abandonment  of  sovereignty  by  the 
state,  the  claim,  that  is,  to  a  monopoly  of  inherent  authority, 
to  complete  legal  independence  of  all  external  control,  and  to 
complete  legal  supremacy  over  all  internal  affairs.  The  rights 
of  corporate  persons,  even  as  against  the  state,  are  conceived 
to  be  legal  rights.  To  say  that  a  corporation  is  a  juristic  person 
means  that  its  personality  as  a  subject  of  rights  and  obliga- 
tions is  recognized  by  law.  In  this  respect  also  the  state  is  like 
other  associations.  It  too  is  a  juristic  person  because  of  its  rec- 


TRANSLATORS     INTRODUCTION  XLV 

ognition  by  law  and  its  competence  arises  from  this  source. 
The  state,  therefore,  is  not  antecedent  to  the  law  but  like  other 
corporate  persons  is  dependent  upon  it.  Thus  the  theory  of  the 
real  personality  of  corporations  joins  hands  with  the  conclu- 
sion at  which  Professor  Krabbe  arrived  by  another  path,  the 
conclusion  that  the  state  derives  its  rightful  authority  from  the 
law.  This  point  is  of  fundamental  importance  and  must  be  con- 
sidered further. 

V.      THE    STATE    AND   LAW 

It  is  worth  while  at  the  outset  to  clear  away  a  possible  mis- 
construction of  this  assertion  that  the  state  is  bound  by  law. 
On  its  face  the  assertion  may  be  made  to  look  like  a  contradic- 
tion in  terms.  Whatever  it  is  that  makes  law,  —  call  it  the  sov- 
ereign or  what  you  will,  —  cannot  be  limited  by  law  in  its  mak- 
ing of  law.  This  proposition  cannot  be  denied  because  it  is 
in  fact  a  truism.  It  has  been  given  altogether  more  attention  by 
writers  on  sovereignty  than  it  is  worth.  For  so  far  as  the  rela- 
tion between  law  and  the  state  is  concerned,  it  settles  nothing 
whatever.  It  tells  us  nothing  about  the  sources  of  law,  its  bind- 
ing force,  or  the  extent  to  which  it  can  or  ought  to  control  the 
acts  of  governing  agencies.  It  is  consistent  with  any  theory 
whatever  regarding  these  matters.  The  problem  concerns  the 
rationale  of  political  authority  and  this  problem  cannot  be 
solved  by  a  truism. 

On  the  other  hand,  the  proposition  that  law  is  the  will  of  an 
inherently  authoritative  sovereign,  which  sometimes  takes  ref- 
uge behind  the  truism  mentioned  above,  is  in  fact  quite  a  dif- 
ferent matter.  It  asserts  that  the  law  derives  its  binding  force 
from  an  extra-legal  will.  Starting  from  this  point  of  view  the 
German  attempts  to  reach  a  fully  legalized  state  ultimately 
fall  back  upon  the  device  of  self-determination.  The  sovereign 
will  imposes  upon  itself  the  obligation  to  act  through  rules  of 
law  and  in  conformity  with  established  law.  But  as  has  often 
been  pointed  out,  self-determination  is  no  determination  at  all. 
It  is  an  undoubted  fact,  as  we  have  seen,  and  a  fact  of  great  im- 


XLVI  TRANSLATORS     INTRODUCTION 

portance,  that  modern  governments  have  shown  a  tendency  to 
regulate  their  actions  more  and  more  by  rules  of  law  and  to 
limit  more  and  more  the  merely  arbitrary  will  of  rulers.  But 
from  no  point  of  view  is  it  an  explanation  of  this  fact  to  ap- 
peal to  the  self-limitation  of  the  state.  Such  an  explanation 
merely  repeats  the  fact ;  it  offers  the  fact  itself  as  its  own 
explanation.  For  if  the  law  itself  is  the  will  of  the  state,  there  is 
no  assignable  reason  why  that  will  should  express  itself  in  law 
or  conformably  to  law  and  in  no  other  way. 

The  fact  is  that  this  question  cannot  be  discussed  without 
going  deeper.  The  real  issue  is  whether  the  state  can  be  ad- 
equately conceived  as  a  sovereign  will  and  whether  law  can 
be  adequately  conceived  as  an  expression  of  will.  The  proposi- 
tion that  the  law  receives  its  binding  force  from  a  sovereign 
will  must  be  judged  as  representing  a  certain  conception  of 
law.  From  this  point  of  view  the  law  is  a  command,  an  order 
issuing  from  one  will  and  addressed  to  another  will.  The  em- 
phasis of  the  theory  is  exclusively  upon  one  aspect  of  law,  its 
imperative  nature  as  a  rule  for  the  curbing  of  subordinate 
wills.  Moreover  behind  this  view  of  law  there  lies  a  conception 
of  society.  Society  is  pictured  as  a  collection  of  wills  each  seek- 
ing its  own  ends  and  requiiing  to  be  brought  into  harmony 
with  other  wills  by  supervision  and  direction.  The  theory  of 
sovereignty  says  nothing  about  the  content  of  the  command. 
The  only  question  is  whether  it  issues  from  a  proper  source; 
an  imperative  arising  from  an  authoritative  source  is  law.  The 
only  question  concerns  the  means  by  which  a  given  will  can  be 
designated  as  authoritative.  Accordingly  theories  of  sovereign- 
ty differ  only  with  reference  to  the  method  of  determining  the 
source  from  which  imperatives  may  rightfully  issue.  Or  to 
state  the  question  somewhat  differently,  if  law  is  the  will  of  the 
state,  how  is  the  state  given  the  right  to  express  its  will  in  com- 
mands binding  upon  its  subjects? 

We  may  leave  out  of  account  theological  theories  of  sover- 
eignty which  sought  a  supernatural  ground  for  authority,  though 
they  have  played  a  great  part  in  the  past.  Perhaps  the  classical 


TRANSLATORS     INTRODUCTION  XL  VII 

theory,  or  at  any  rate  the  classical  liberal  theory,  is  the  doctrine 
of  government  by  consent,  which  was  stated  most  explicitly 
in  the  various  forms  of  contract  theory.  It  should  be  observed 
that  this  theory,  though  universally  rejected  by  political  scien- 
tists, is  really  implicit  in  the  doctrine  of  popular  sovereignty 
which  is  still  prevalent.  The  assertion  that  the  people  rule,  that 
government  is  self-government,  means,  when  it  is  used  to  jus- 
tify the  coercive  exercise  of  authority,  essentially  the  same 
thing  as  government  by  consent.  However  veiled,  this  amounts 
to  the  theory  of  a  social  contract.  And  like  the  contract  theory, 
the  doctrine  of  consent  is  a  pure  fiction.  It  is  at  most  an  awk- 
ward way  of  insisting  that  authority  should  not  be  arbitrary 
but  in  practice  it  does  not  even  offer  a  way  of  determining 
what  exercise  of  authority  is  arbitrary.  As  John  Stuart  Mill 
and  other  liberal  thinkers  of  the  mid-nineteenth  century  were 
aware,  the  doctrine  of  consent,  as  commonly  interpreted, 
might  be  consistent  with  the  most  serious  invasion  of  the  rights 
of  minorities.  The  truth  is  that  the  doctrine  of  consent  attempts 
the  impossible.  It  seeks  to  conceive  all  political  obligation  as 
freely  accepted  and  therefore  as  something  to  which  the  individ- 
ual binds  himself  by  his  own  act.  It  requires  no  argument  to- 
day to  show  that  this  is  a  wholly  inadequate  way  of  conceiving 
political  and  social  relations. 

It  should  be  noted,  however,  that  the  theory  of  consent 
adopts  the  only  way  open  to  it  in  view  of  the  presumption  re- 
garding the  nature  of  law  and  society  with  which  it  works. 
This  presumption,  it  should  bo  observed,  is  precisely  the  same 
as  that  which  we  have  already  pointed  out  as  typical  of  the 
theory  of  sovereignty.  Society  is  conceived  as  a  collection  of 
wills  and  law  as  a  body  of  rules  foi  curbing  the  will.  In  default 
of  some  supernatural  guarantee  for  the  superiority  of  the  sov- 
ereign will,  some  such  guarantee,  for  example,  as  was  offered 
by  the  theory  of  the  divine  right  of  the  king,  how  can  the  right 
of  one  will  to  control  another  will  be  justified  except  by  con- 
sent? The  theory  cannot  appeal  to  the  value  attaching  to  the 
content  of  the  rule,  for  as  we  have  seen,  the  theory  of  sovereign- 


XLVIII  TRANSLATORS     INTRODUCTION 

ty  neglects  the  content  of  rules.  They  are  authoritative  if  they 
issue  from  an  authoritative  source.  But  fundamentally  there 
is  nothing  in  the  nature  of  will  wtiich  can  justify  the  right  of  one 
will  to  control  others.  Except  on  the  assumption  that  each  will 
freely  accepts  the  burden,  there  is  no  way  to  free  such  control 
form  the  stigma  of  arbitrariness. 

The  theory  of  sovereignty  and  the  theory  of  consent  thus 
form  two  sides  of  a  single  conception  of  law  and  society.  There 
is,  it  is  true,  an  apparent  opposition  between  them,  since  the 
one  insists  upon  the  absolute  authority  of  the  state  and  the 
other  upon  the  indefeasible  rights  of  the  individual.  This  is 
what  Professor  Burgess  refers  to  as  the  paradox  of  liberty  and 
sovereignty.  But  the  opposition  is  more  apparent  than  real,  in 
the  sense  that  both  adopt  essentially  the  same  point  of  view. 
The  theory  of  sovereignty  insists  that  wills  must  be  controlled. 
The  doctrine  of  consent  urges  that  nevertheless  they  must  re- 
main wills.  An  assertion  of  personal  liberty  is  the  correlate  of 
the  assertion  of  a  supreme  right  to  command.  The  principle  of 
personal  liberty,  at  least  in  its  traditional  forms,  meant  that 
there  was  a  residuum  of  decisions  which  must  be  left  to  the 
individual  will,  else  it  could  not  retain  the  dignity  due  to  hu- 
man personality.  From  this  point  of  view  the  ideal  of  law  be- 
comes that  stated  by  Kant,  the  maintenance  of  a  system  which 
permits  the  widest  possible  assertion  of  the  free  rational  will.1) 
Such  a  will,  though  controlled  internally  by  its  own  rationality, 
is  free  externally  in  so  far  as  it  has  an  unrestricted  liberty  to  do 
as  it  pleases.  Freedom  consists  not  in  the  content  or  worth  of 
that  which  is  done  but  merely  in  the  formal  fact  of  unrestrained 
determination  by  the  will  itself,  or,  as  has  been  said,  in  "a  sphere 
of  anarchy."  Every  person  is  to  be  guaranteed  a  certain  cir- 
cle within  which  he  may  move  at  will.  The  state  will  maintain 
his  boundaries  against  aggression  but  the  content  of  the  deci- 
sions taken  within  the  limit  set  is  solely  the  business  of  the  in- 

J)  On  the  prevalence  of  this  point  of  view  in  nineteenth  century  jurisprudence, 
see  Roscoe  Pound,  "The  End  of  Law  as  Developed  in  Juristic  Thought,"  27 
Harvard  Law  Review,  p.  605;  30  Ibid.,  p.  201.  Cf.  also  "The  End  of  Law  as  Devel- 
oped in  Legal  Rules  and  Doctrines,"  27  Ibid.,  p.  195. 


TRANSLATORS     INTRODUCTION  XLIX 

dividual.  The  state  does  not  profess  to  maintain  even  the  con- 
ditions of  any  kind  or  degree  of  concrete  accomplishment.  The 
individual  is  the  sole  arbiter  of  the  kinds  of  satisfaction  he 
shall  seek;  the  risk  is  his  and  also  the  profit.  The  state  is  re- 
sponsible solely  for  preserving  the  limits  within  which  the  indi- 
vidual is  free  and  in  the  performance  of  this  task  the  will  of 
the  state  is  as  absolute  as  that  of  the  individual  within  his  own 
sphere.  The  rights  of  the  individual  and  the  authority  of  the 
state  are  related  as  the  inside  and  the  outside  of  the  same  cir- 
cle. In  practice  this  view  issues  in  an  emphasis  of  the  rights  of 
contract  and  property. 

It  is  idle  to  discuss  the  assumption  of  a  sovereign  will  or  the 
principle  of  personal  liberty  and  government  by  consent,  so 
long  as  the  presumption  regarding  society  and  law  implicit  in 
those  theories  is  unquestioned.  Assuming  that  society  is  a  col- 
lection of  wills  each  motived  by  its  own  internal  force,  there  is 
no  principle  of  harmony  except  an  overmastering  force,  as 
Hobbes  very  clearly  saw.  Assuming  that  this  coercive  force  is  to 
be  justified  to  the  individual  will,  it  can  be  justified  only  on  the 
assumption  that  he  accepts  its  control.  From  this  point  of  view, 
therefore,  the  theories  of  a  sovereign  will  and  of  consent  are 
inevitable.  The  fact  that  both  are  fictions  merely  reflects  the 
inadequacy  of  the  general  view  of  society  and  law  upon  which 
they  rest.  Like  all  broad  generalizations  this  view  is  not  so 
much  untrue  as  one-sided.  It  develops  a  theory  of  political  ob- 
ligation about  a  single  phase  of  society  and  a  single  function  of 
law.  Its  history  has  been  one  of  gradual  decay  as  other  aspects 
of  the  subject  were  brought  to  light  in  political  theory.  At  the 
same  time,  the  trend  of  political  evolution  itself  has  been  such 
that  the  ideal  of  individual  liberty  or  the  assertion  of  rights  be- 
came less  and  less  a  guide  for  legislation. 

Already  within  the  limits  of  the  contract  theory  itself  we 
can  see  in  Rousseau's  distinction  between  the  general  will  and 
the  will  of  all  the  bieaking-up  of  the  view  which  regards  the 
political  community  as  merely  a  collection  of  wills.  The  general 
will  is  a  will  only  in  name :  it  belongs  really  to  a  different  order 

The  modern  idea  of  the  State.  iv 


L  TRANSLATORS     INTRODUCTION 

from  the  individual  will.  This  point  is  carried  further  in  the  so- 
called  "organismic"  theories  of  the  state  and  still  further  in  the 
theory  that  the  state  is  a  corporate  personality.  In  this  type  of 
theory  the  control  of  the  individual  is  justified  not  by  his  con- 
sent but  by  the  inherent  superiority  of  the  whole  to  the  part. 
The  individual  belongs  to  the  social  system  and  his  achievement 
of  moral  dignity  depends  upon  his  finding  a  place  in  it.  His  per- 
sonality as  an  individual  is  largely  the  product  of  his  loyalty 
to  causes  larger  than  himself.  He  is  not  naturally  and  inher- 
ently a  subject  of  rights  but  by  attaining  a  station  in  the  social 
whole  he  becomes  the  subject  both  of  rights  and  duties.  Rights 
and  duties  are  therefore  reciprocal  and  in  a  twofold  sense. 
Rights  require  social  acceptance ,  no  man  has  rights  by  nature 
or  merely  because  he  claims  them,  but  only  because  his  claim 
gains  the  recognition  of  others  besides  himself.  One  man's 
right  implies  another  man's  duty.  But  rights  and  duties  are  re- 
ciprocal also  in  the  sense  that  both  imply  a  certain  social  re- 
sponsibility in  the  character  of  him  who  possesses  them.  The 
moral  capacity  to  fill  a  recognized  place  in  society  and  to 
accept  the  responsibilities  of  that  place  is  required  to  make  one 
the  subject  of  either  rights  or  duties,  and  rights  cannot  be  with- 
held if  duties  are  to  be  exacted.  All  that  the  individual  has, 
both  of  rights  and  duties,  is  social  in  its  nature.  He  cannot  es- 
cape, and  in  the  end  cannot  wish  to  escape,  from  the  net  of  so- 
cial relationships  within  which  he  lives  his  personal  life.  Au- 
thority is  not  outside  him  but  is  one  of  the  conditions  of  his  own 
personality. 

This  explanation  of  authority,  which  largely  gained  curren- 
cy from  the  Hegelian  and  Neo-Hegelian  philosophy, l)  brings 
to  light  a  new  and  fundamentally  different  conception  of  polit- 
ical society.  Society  is  no  longer  a  collection  of  wills  but  a  sys- 
tem of  co-operating  parts  or  organs.  Sovereignty,  therefore,  is 
the  property  of  the  whole.  No  part  is  as  such  endowed  with  the 


*)  The  best  presentation  is  probably  B.  Bosanquet's  Philosophical  Theory  of  the 
State,  Ch.  VI.  Cf.  also  F.  H.  Bradley,  Ethical  Studies,  Essay  V,  "My  Station  and 
its  Duties." 


TRANSLATORS     INTRODUCTION  LI 

right  to  command,  but  since  the  significance  and  value  of  the 
individual  depends  upon  his  relation  to  the  whole,  this  whole 
has  a  superior  value  which  the  individual  recognizes  as  the  prin- 
ciple for  evaluating  his  own  ends  and  actions.  In  the  last  resort, 
therefore,  the  will  is  not  curbed  by  other  wills.  The  control  of 
individual  caprice  and  wilfulness,  which  is  inseparable  from 
social  life,  is  an  indispensable  means  to  the  attainment  of  that 
wholeness  of  vision  which  the  development  even  of  individual 
personality  demands. 

The  theory  thus  briefly  summarized  is  important  because  it 
affords  a  point  of  view  which  is  indispensable  to  any  theory  of 
political  obligation.  It  once  for  all  breaks  down  the  hard  impen- 
etrability of  human  personality  as  conceived  by  the  older  the- 
ories of  individualism.  It  is  in  effect  a  return  to  the  Aristotelian 
principle  that  man  is  by  nature  an  animal  which  lives  in  a  polit- 
ical community.  His  social  connections  are  not  accidental  to 
him  but  part  of  the  warp  and  woof  of  his  own  personality.  This 
conception,  or  some  equivalent  for  it,  makes  part  of  the  point 
of  view  from  which  any  theory  must  consider  the  question  of 
political  authority.  At  the  same  time  the  theory  is  too  general 
in  its  scope  to  give  us  more  than  a  point  of  view.  In  the  first 
place,  it  deals  rather  with  the  whole  of  society  than  with  the 
state  specifically.  It  arrives  too  easily  at  the  state  as  the  all- 
controlling  social  group.  Granted  that  social  relations  are  in- 
separable from  even  the  individual  good,  why  should  it  be  just 
the  state  which  is  the  ultimately  authoritative  group  and  the 
arbiter  of  all  other  groupings  ?  The  theory  does  not  meet  the 
questions  raised  by  Professor  Figgis  and  Mr.  Laski  and  it  may 
be  conjectured  that  it  relies  too  completely  upon  Greek  expe- 
rience. The  modern  national  state  is  no  fair  analogue  of  the 
Greek  city  state,  which  dominated  not  only  political  relations 
but  also  the  citizens'  religious  and  moral  experience  in  a  way 
that  no  modern  state  can  do.  In  the  second  place  it  is  to  be 
noted  that  this  theory  does  not  address  itself  especially  to  the 
conception  of  law.  It  does  not  question  the  proposition  that  the 
chief  characteristic  of  law  is  its  imperative  or  coercive  quality. 


LII  TRANSLATORS     INTRODUCTION 

Accordingly,  as  Professor  Bosanquet  says,  "The  State ....  is 
necessarily  force."  x)  It  offers,  to  be  sure,  a  new  type  of  justifi- 
cation for  coercion  but  the  justification  still  runs  in  terms  of 
will,  though  the  theory  recognizes  that  will  is  no  such  simple 
matter  as  the  older  theories  had  been  accustomed  to  assume. 
The  distinction  between  "real  will"  and  "actual  will"  2)  in- 
volves aspects  of  the  nature  of  law  which  cannot  be  ade- 
quately dealt  with  by  the  conception  of  it  as  the  expression 
of  a  superior  will. 

A  third  class  of  theories  regarding  the  authority  of  the  state 
is  made  up  of  those  which  appeal  yet  more  directly  to  social 
organization.  Of  the  various  forms  which  these  theories  take, 
certain  aspects  of  the  views  of  Professor  Leon  Duguit  will  serve 
as  an  illustration.  This  type  of  theory  refers  the  rightful  au- 
thority of  rulers  to  the  sociological  principles  which  govern  the 
structure  of  human  society.  Starting  from  Durkheim's  princi- 
ple of  the  division  of  social  labor,  Professor  Duguit  posits 
social  solidarity  as  constituting  an  objective  law  binding  upon 
all  the  members  of  a  society.  3)  This  objective  law  requires  that 
everything  shall  be  done  which  increases  solidarity  and  that 
everything  shall  be  avoided  which  decreases  it.  By  this  means 
the  author  arrives  at  the  conclusion  that  the  state  is  bound  by 
law,  since  those  who  rule  are  subject  to  the  objective  law  like 
all  other  members  of  the  group.  There  is  for  him  no  state  as 
distinguished  from  the  persons  who  actually  wield  political 
power.  Indeed,  such  power  is  merely  a  fact;  there  is  no  justifi- 
cation of  it,  though  it  is  rightly  used  when  it  promotes  the  end 
of  solidarity.  According  to  this  view,  then,  human  needs  give 
rise  to  certain  permanent  institutions  which  must  be  main- 
tained in  order  that  the  needs  may  be  satisfied.  This  objective 
social  structure  requires  certain  kinds  of  behavior  and  outlaws 
certain  other  kinds.  Certain  services  must  be  continuously  ren- 
dered in  order  that  the  life  of  the  group  may  proceed  unbroken. 

l)  Op.  cit.,  p.  152. 
*)  Bosanquet,  op.  cit.,  Ch.  V. 

a)  L'ctat:  le  droit  objectif  et  la  loi  positive,  Sect.  182  ff.  Translated  in  Modern 
French  Legal  Philosophy,  pp.  258  ff 


TRANSLATORS     INTRODUCTION  LIII 

In  so  far  as  the  rulers  render  these  services,  —  and  an  increas- 
ing number  of  services  in  modern  society  are  necessarily  being 
placed  under  the  control  of  government,  —  the  obligations 
of  objective  law  fall  as  stringently  upon  government  as  upon 
private  persons.  All  are  subject  to  the  law  which  requires  the 
preservation  of  the  social  structure.  Law  as  it  is  commonly  un- 
derstood, —  the  statutes  of  the  legislature,  the  decisions  of  the 
courts,  and  the  ordinances  of  administrative  officials,  —  is 
merely  an  expression  of  the  objective  law  and  gets  its  author- 
ity from  this  fact. 

When  we  inquire  how  far  this  theory  solves  the  problem  of 
a  state  which  is  legal  throughout,  we  perceive  that  it  presents 
a  sort  of  paradox.  This  paradox  lies  in  the  fact  that,  though  the 
positive  law  derives  its  binding  force  from  the  fact  that  it  is  a 
means  of  solidarity,  the  author  refuses  to  accept  this  as  a  justi- 
fication of  the  authority  exercised  by  the  ruling  class.  The 
rulers  exercise  an  actual  power,  due  to  their  intellectual,  moral, 
numerical,  or  economic  superiority;  in  all  societies  some  have 
been  able,  for  these  reasons  or  for  others,  to  impose  their  will 
upon  other  persons.  This  is  merely  a  fact ;  it  has  always  been 
true  and  always  will  be  true.  But  surely  this  misses  the  main 
point,  namely,  that  power  in  the  modern  state  is  for  the  most 
part  legal  power.  Those  who  wield  it  are  designated  in  ways 
prescribed  by  law  and  their  powers  are  defined  by  law.  Even 
Professor  Duguit  himself  elsewhere  puts  much  stress  upon  the 
legal  responsibility  of  officials  for  the  performance  of  their 
duties  and  upon  safeguarding  the  private  citizen  from  arbi- 
trary and  extra-legal  interference. 1)  But  if  the  requirements  of 
law  are  rightful  as  ways  of  preserving  solidarity,  it  is  hard  to 
see  how  the  power  of  officials  under  these  laws  can  be  merely 
the  expression  of  extra-legal  forces.  This  parado'x  really  brings 
out  the  difficulty  of  the  sociological  type  of  theory.  It  leaves 
a  gap  between  the  objective  law  of  solidarity  and  the  positive 
law  as  it  exists  in  our  statutes  and  in  the  convictions  of  men 
about  right  and  wrong,  or  lawful  and  unlawful,  conduct.  At 

')  Law  in  the  Modern  State,  Ch.  II.  English  translation  by  F.  and  H.  Laski. 


LIV  TRANSLATORS     INTRODUCTION 

all  events  nothing  can  be  more  obvious  than  that  the  making 
and  administering  of  law  is  only  partly  motived  by  the  con- 
sciousness of  social  solidarity  as  an  end.  Solidarity  is  a  sociolog- 
ical generalization,  embodying  a  fact  about  social  groups  and 
the  general  tendency  of  the  institutions  and  laws  which  they 
develop.  But  there  is  a  long  step  from  this  fact  to  the  em- 
bodying of  the  fact  in  actual  law  and  actual  institutions.  Incon- 
sequence the  theory  fails  to  arrive  at  the  end  sought,  an  expla- 
nation of  the  fact  that  the  modern  state  is  legalized  not  in  terms 
of  a  sociological  principle  but  in  terms  of  positive  law.  In  order 
to  see  how  this  is  possible,  we  must  examine  more  closely  the 
concept  of  law  itself. 

VI.   INTERESTS  AS  THE  SUBJECT  MATTER  OF  LAW 

The  sociological  aspect  of  Professor  Duguit's  theory  does 
not  in  fact  represent  his  most  important  contribution  to  the 
conception  of  law  and  the  analysis  of  its  authority.  His  main 
service  is  in  bringing  to  light  a  phase  of  law  which  is  too  much 
neglected  by  the  theories  of  sovereignty.  The  function  of  law, 
according  to  Professor  Duguit,  is  to  organize  and  keep  in  con- 
tinuous operation  a  group  of  public  services  which  are  neces- 
sary to  the  life  of  society  and  which  could  not  be  carried  on 
with  equal  efficiency  without  public  authority.  He  makes  a 
corresponding  change  in  the  aspect  of  government  which  is 
singled  out  for  emphasis.  Government  is  not  a  collection  of 
powers,  as  it  is  necessarily  conceived  to  be  so  long  as  the  imper- 
ative phase  of  law  is  uppermost,  but  a  collection  of  agencies  to 
organize  and  manage  public  interests.  Education,  for  example 
is  such  an  interest.  Under  modern  conditions  public  education 
has  become  for  the  most  part  a  function  of  government.  A 
system  of  schools  has  to  be  kept  in  operation,  providing  for 
education  of  all  kinds  from  the  kindergarten  to  the  university. 
An  adequate  personnel  of  teachers  and  executives  must  be  re- 
cruited; buildings  and  equipment  must  be  provided;  funds 
must  be  raised;  the  policy  of  the  whole  system,  its  curriculum, 
and  its  articulation  with  the  industrial,  social,  and  intellectual 


TRANSLATORS     INTRODUCTION  LV 

life  of  the  group  must  be  planned.  The  purpose  of  educational 
legislation  is  to  create  and  direct  such  a  system.  In  the  same 
way  a  great  portion  of  modern  legislation  creates  other  similar 
public  services.  The  railway  system  must  be  kept  functioning, 
under  private  ownership  perhaps  but  certainly  not  without 
public  control  and  with  whatever  guarantees  of  credit  and  la- 
bor policy  may  be  needed  to  keep  it  in  a  reasonable  state  of 
efficiency.  The  banking  system  must  be  supervised ;  highways 
and  bridges  must  be  built  and  kept  open;  sanitary  regulations 
must  be  enforced  and  the  public  health  safe-guarded ;  factories 
must  be  inspected  and  labor  legislation  administered ;  munic- 
ipal water,  gas,  and  light  plants  must  be  kept  running.  The 
list  might  be  extended  to  almost  any  length,  for  no  phenome- 
non of  modern  government  is  more  conspicuous  than  the  extent 
to  which  government  has  been  forced  to  turn  its  hand  to  all 
sorts  of  social  and  economic  problems.  Professor  Duguit's  great- 
est service  to  political  theory  lies  in  the  clearness  with  which 
he  displays  the  effect  of  these  new  problems  upon  the  organiza- 
tion of  government. 

It  is  obvious  that  in  legislation  directed  to  ends  such  as  these, 
—  and  a  great  and  growing  proportion  of  law  deals  with  just 
such  questions,  —  the  coercive  or  imperative  phase  of  the 
state's  activity  is  not  uppermost.  Coercion,  to  be  sure,  may  be 
there.  A  school  law  is  coercive  in  that  it  may  involve  taxation 
and  it  is  certainly  mandatory  upon  officials  and  perhaps  to 
some  extent  upon  parents  or  upon  pupils  in  public  schools. 
But  this  is  not  its  sole  nor  even  its  outstanding  feature.  Some 
public  services  indeed  involve  no  coercion  at  all;  a  city  may 
produce  electricity  without  requiring  anyone  to  buy  it.  From 
this  point  of  view,  law  is  an  expression  of  public  policy,  a  deci- 
sion with  reference  to  the  socially  desirable  course  to  pursue. 
It  provides  for  widely  felt  needs  both  of  a  public  and  a  private 
nature.  The  educational  system  aims  to  satisfy  both  the  need 
of  the  individual  for  instruction  and  also  the  social  need  for  an 
educated  citizenship.  From  both  points  of  view  instruction  is 
indispensable  and  the  educational  system  is  a  public  agency 


LVI  TRANSLATORS     INTRODUCTION 

designed  to  perform  this  service.  Coercion  is  an  incident,  - 
no  doubt  in  some  respects  an  unescapable  incident,  but  still 
only  an  incident,  —  in  the  rendering  of  this  service.  The  exclu- 
sive emphasis  upon  the  imperative  nature  of  law  is  due  to  the 
fact  that  criminal  law  is  frequently  taken  as  the  type.  As  a 
result,  government  is  conceived  as  sovereign  authority  because 
police  duties,  the  function  of  preserving  peace  and  order,  are 
thought  to  be  the  typical  duties  of  government.  The  most  novel 
and  enlightening  feature  of  Professor  Duguit's  theory  is  the 
idea  that  the  rendering  of  public  services  is  the  type.  From  this 
point  of  view  the  suppression  of  crime  and  the  preservation  of 
public  order  and  peaceful  relations  are  themselves  public  ser- 
vices. They  are  services  more  elementary  in  their  nature  than 
the  care  for  education  or  railway  transportation  but  under 
modern  conditions  not  more  indispensable. 

Behind  this  view  of  the  state  as  a  collection  of  public  services 
there  lies  a  far-reaching  change  in  the  conception  of  law  itself. 
The  end  of  law  can  no  longer  be  conceived  as  principally  the 
maintenance  of  rights.  The  foundation  of  this  point  of  view  is, 
as  we  have  seen,  the  conception  of  society  as  a  collection  of 
wills  each  of  which  is  to  be  defended  in  the  exercise  of  the 
largest  possible  measure  of  free  decision.  From  the  other  point 
of  view  society  is  a  system  in  which  the  paths  for  certain 
exchanges  of  service  must  be  constantly  kept  open,  and  the 
law  is  the  means  by  which  this  is  accomplished.  There  are 
interests  which  must  be  served.  Within  such  a  society  the  indi- 
vidual is  a  subject  of  interests  rather  than  a  subject  of  rights. 
Indeed  his  rights  are  only  one  species  of  interests,  those  namely 
to  which  law  gives  protection  and  sanction.  Ihering's  definition 
of  rights  as  legally  protected  interests  l)  is  commonly  admitted 
to  mark  a  change  in  point  of  view  which  is  of  fundamental  im- 
portance. 2)  It  is  important  to  see  precisely  what  the  change  in 

*)  Geist  des  rbmischcn  Rechts,  Sect.  60,  Ed.  4,  Part  III,  p.  339. 

*)  Cf.  Roscoe  Pound,  "The  End  of  Law  as  Developed  in  Legal  Rules  and  Doc- 
trines," 27  Harvard  Law  Rev.,  p.  226.  "Such  a  movement  is  taking  place  palpably 
in  the  law  of  all  countries  to-day.  Its  watchword  is  satisfaction  of  human  wants, 
and  it  seems  to  put  as  the  end  of  law  the  satisfaction  of  as  many  human  demands 
as  we  can  with  the  east  sacrifice  of  other  demands." 


TRANSLATORS     INTRODUCTION  LVII 

point  of  view  amounts  to  in  order  to  grasp  its  bearing  upon  the- 
ories of  the  nature  of  law. 

The  idea  behind  the  concept  of  an  interest  is  that  of  partici- 
pation in  some  property  or  benefit  or  advantage,  that  is,  in 
some  value  whether  tangible  or  otherwise.  In  this  sense  we 
speak  of  an  interest  in  a  business  or  an  estate.  On  the  other 
hand,  the  word  has  a  subjective  meaning  as  referring  to  the 
state  of  mind  with  which  one  regards  or  concerns  oneself  with 
the  value  in  which  one  claims  to  share.  Thus  one  is  said  to  be 
interested  in  a  business,  meaning  not  only  that  one  actually 
owns  a  share  of  it  but  also  that  one  concerns  oneself  with  it  or 
feels  it  to  be  a  matter  of  importance.  This  use  of  the  word 
receives  in  common  usage  a  very  broad  application.  Interests 
refer  not  only  to  shares  in  the  ownership  of  tangible  things  or 
things  capable  of  a  monetary  valuation  but  also  to  quite  intan- 
gible things  where  no  question  of  ownership  is  involved.  Thus 
one  is  said  to  be  interested  in  political  issues  or  in  literature  or 
in  sport.  In  all  these  cases,  however,  there  is  the  same  funda- 
mental idea.  The  thing  in  question  calls  out  a  peculiar  sort  of 
mental  attitude  in  the  mind  of  the  person  interested ;  it  has  a 
bearing  upon  his  action  or  judgment,  and  he  has  a  share  in  it 
in  the  sense  that  it  is  a  matter  of  at  least  potential  value  for 
him.  He  concerns  himself  about  it.  It  attracts  him  or  possibly 
repels  him;  at  any  rate  it  is  not  indifferent  but  evokes  some 
sort  of  reaction  either  in  his  actions  or  at  all  events  in  his 
thoughts.  The  meaning  of  an  interest  will  thus  be  seen  to  be 
twofold.  There  is  always  the  sharer  and  the  shared.  There  is 
the  private  or  subjective  side,  the  fact  that  a  response  of  some 
sort  is  elicited,  and  the  external  or  objective  side,  the  fact  that 
there  is  always  something  other  than  the  interest  itself  toward 
which  the  feeling  is  directed.  It  is  this  twofold  nature  which 
makes  the  conception  of  interest  serviceable  in  an  understand- 
ing of  the  society  in  which  law  exists  and  functions. 

It  will  readily  be  seen,  therefore,  that  the  conception  of  an 
interest  is  well  designed  to  break  down  the  exclusive  character 
which  attached  historically  to  the  conception  of  a  right.  A 


LVIII  TRANSLATORS'  INTRODUCTION 

right  seems  to  belong  strictly  and  solely  to  the  person  who 
possesses  it  and  to  imply  the  exclusion  of  others  from  that 
which  lies  within  its  scope.  An  interest,  on  the  other  hand,  is  a 
share  and  it  carries  with  it  the  suggestion  of  other  sharers. 
There  is  no  limit  to  the  number  who  may  share.  Such  a  share 
may  of  course  be  a  separable  part  of  some  property  or  value, 
but  there  is  no  need  that  it  should  be.  The  value  shared  may  be 
such  that  it  can  be  shared  by  an  indefinite  number  without 
any  single  interest  or  share  being  the  smaller  or  less  valuable 
on  that  account.  An  interest  need  not  be  diminished  because 
other  persons  have  a  similar  interest.  The  conception  of  in- 
terest thus  breaks  down  the  particularist  implication  that  be- 
longed historically,  if  not  necessarily,  to  the  conception  of 
rights.  It  passes  at  once  beyond  the  notion  of  a  good  conceived 
as  a  possession  or  a  piece  of  property  which  can  be  enjoyed  by 
one  person  only  on  condition  that  others  are  excluded  from  it. 
It  suggests  what  is  obviously  a  fact,  that  many  interests  can 
be  shared  indefinitely.  And  the  acceptance  of  this  fact  removes 
one  great  obstacle  to  the  recognition  of  classes  of  interests  less 
tangible  than  those  of  property.  The  right  of  a  laborer  to  a 
living  wage  is  a  notion  so  vague  that  neither  the  courts  nor  the 
legislature  can  successfully  safeguard  it.  The  interest  of  the 
whole  community  in  preserving  a  certain  minimum  standard 
of  living  for  all  its  members  is  an  idea  that  can  be  easily 
grasped,  however  hard  to  realize  it  may  be  in  practice.  The 
whole  change  of  emphasis  from  property  rights  to  what  are 
sometimes  called  "human  rights"  is  in  fact  a  recognition  that 
the  end  of  law  is  the  safeguarding  of  interests. 

In  another  way  also  the  conception  of  interests  tends  to  free 
thought  from  particularist  implications.  A  right  is  the  attribute 
of  a  person,  but  an  interest  may  be  larger  and  more  permanent 
than  the  person  who  possesses  it.  The  conception  of  a  right  is 
subjective;  that  of  an  interest,  as  we  have  pointed  out,  is  al- 
ways on  one  side  objective.  It  permits  the  individual  to  become 
a  sharer  in  something  which  transcends  his  personal  particu- 
larity. No  doubt  men  feel  an  interest,  but  an  interest  is  not 


TRANSLATORS     INTRODUCTION  LIX 

merely  a  feeling.  For  an  interest  is  a  share;  it  cannot  be  ex- 
hausted in  the  mere  fact  that  it  is  felt.  There  must  be  something 
objective  to  which  the  feeling  can  attach  itself.  An  interest  in 
some  corporate  group,  like  a  political  party  or  a  church,  means 
the  acceptance  of  the  purpose  of  the  group  as  part  of  one's  own 
purposes.  The  group,  therefore,  represents  a  lasting  and  an 
objective  interest  of  which  the  individual  makes  himself  for 
the  time  being  part-possessor.  The  concept  of  interest  serves 
better  than  any  other  the  end  of  escaping  from  the  barren 
subjectivism  which  pictures  the  person  as  self-contained,  a 
purely  private  self  shut  up  in  his  own  feelings  and  aiming  at  his 
own  well-being.  A  person  who  is  conceived  as  a  subject  of  in- 
terests is  necessarily  in  touch  with  his  surroundings.  He  partici- 
pates in  what  is  going  on  around  him  precisely  because  his  in- 
terests necessarily  take  him  out  of  himself.  For  the  same  reason 
the  end  of  preserving  interests  lays  upon  law  an  obligation 
which  cannot  be  met  by  preserving  merely  certain  forms  of 
social  relationships,  such  as  liberty  of  contract.  Interests  are 
the  very  stuff  out  of  which  human  beings  are  made.  The  satis- 
faction of  an  interest  is  always  a  matter  of  positive  achievment, 
to  be  judged  by  its  actual  effects  upon  the  ends  and  accom- 
plishments of  concrete  human  beings.  Action  may  have  the 
form  of  free  will  and  yet  the  conditions  may  be  such  that  no 
end  worth  achieving  is  possible.  In  such  a  case  the  interests 
are  in  no  way  preserved  by  the  fact  that  there  is  formal  lib- 
erty. The  view  that  the  state  must  maintain  at  least  the  con- 
ditions of  a  minimum  of  valuable  achievment  is  another  exam- 
ple of  the  shift  of  emphasis  from  rights  to  interests. 

It  is  also  an  advantage  of  the  concept  of  interests  that  it 
does  not  make  the  individual  merely  a  part  or  function  of  some 
social  whole.  It  avoids  the  difficulties  both  of  the  analogy 
between  society  and  an  organism,  and  that  between  society 
and  a  superior  personality.  The  latter  theories  are  and  must 
remain  analogies  and  analogies  are  dangerous.  The  theories  of 
a  social  organism  or  of  a  corporate  person  cannot  take  the 
place  of  a  direct  examination  of  social  fact  or  the  statement  o  f 


LX  TRANSLATORS     INTRODUCTION 

such  fact  in  categories  suitable  to  its  own  peculiar  nature.  The 
concept  of  interest  has  precisely  this  value.  A  social  group  is 
not  an  organism  for  the  obvious  reason  that  the  members  of 
it  are  not  organs.  It  is  not  a  person  for  the  equally  obvious 
reason  that  a  person  is  not  made  up  of  other  persons.  The  mem- 
bers of  a  human  society  are  persons  and  they  are  never  any- 
thing else.  And  being  persons,  they  are  drawn  to  the  group 
precisely  because  it  gives  them  something  indispensable  which 
they  can  share  or  be  interested  in.  In  the  long  run  the  power  of 
the  group  must  rest  on  its  capacity  to  evoke  loyalty  in  its  mem- 
bers. If  on  the  one  hand  interests  take  the  individual  out  of 
himself,  they  always  make  him  a  sharer  in  something  which 
has  an  importance  for  him.  Sharing  is  necessarily  two-sided; 
the  share  belongs  to  some  one  though  it  is  a  share  of  something 
outside  its  possessor.  This  relation  of  the  person  to  the  group 
is  sui  generis.  It  is  a  clear  fact  of  every-day  knowledge  and 
nothing  but  confusion  follows  from  the  attempt  to  force  it 
into  the  categories  of  another  order  of  facts.  The  fact  itself 
presents  no  paradox  unless  such  an  attempt  is  made. 

Acceptance  of  the  view  that  the  law  aims  to  safeguard  in- 
terests largely  does  away  with  the  discussion  of  such  idle  ques- 
tions as  whether  legislation  is  "socialistic"  or  "individualistic," 
or  is  directed  to  the  good  of  the  group  or  of  the  individual. 
Obviously  no  theory  alters  the  fact  that  some  interests  con- 
flict with  other  interests;  the  important  point  is  to  sacrifice  as 
few  interests  of  any  sort  as  possible  and  if  some  must  be  sacri- 
ficed, to  choose  the  less  important.  But  nothing  can  be  more 
obvious  than  that,  in  the  large,  all  interests  are  both  social  and 
individual.  The  old  debate  about  the  relative  importance  of 
self-interest  and  altruism  in  human  nature  is  hopelessly  futile. 
An  interest  per  se  is  neither  the  one  thing  nor  the  other.  What 
interests  one  is  just  the  thing  itself.  Egoism  reduces  to  the 
foolish  proposition  that  an  interest  is  always  somebody's  in- 
terest. Altruism  reduces  to  the  foolish  search  for  an  interest  in 
which  nobody  is  interested. 

To  sum  up,  then,  a  person  is  the  subject  of  interests  and 


TRANSLATORS     INTRODUCTION  LXI 

these  interests  are  manifold.  His  interests  bring  him  into  con- 
tact with  other  persons  and  with  things.  Nevertheless,  his 
interests  remain  always  his  and  their  motive  power  so  far  as 
he  is  concerned  arises  from  that  fact.  Certain  causes  or  ends  ap- 
peal to  him.  At  the  same  time  that  which  he  is  interested  in  is 
mostly  outside  himself.  He  is  a  sharer  in  certain  concrete  ends 
which  must  be  realized  in  co-operation  with  some  and  against 
the  opposition  of  other  persons.  His  interests  are  partly  private 
and  personal,  but  as  a  rule  they  are  shared  by  a  smaller  or 
larger  number  of  other  persons.  His  interests  are  in  no  sense 
confined  to  the  present.  They  may  have  their  roots  in  events 
that  happened  years  or  centuries  before  he  was  born ;  they  may 
have  a  continuance  which,  in  comparison  with  the  fleeting  life 
of  the  individual,  may  be  called  permanent.  He  may  value  some 
of  them  especially  because  they  are  his  and  have  a  peculiar 
personal  charm;  he  may  value  others  far  beyond  the  estimate 
that  he  sets  upon  his  personal  existence.  The  law  exists  and 
functions  within  such  a  complex  of  interests  and  as  a  factor 
in  a  community  whose  members  are  subjects  of  interests. 
We  must  next  consider  what  this  function  is  with  reference 
to  the  raw  material  of  human  interests. 

VII.      LAW  AS  THE  EVALUATION  OF   INTERESTS 

It  is  manifest  from  what  has  been  said  that  the  interests  even 
of  a  single  individual  are  almost  inconceivably  numerous,  and 
that  they  are  related  to  one  another  and  to  the  interests  of 
other  persons  in  the  most  complex  ways.  They  may  draw  him 
into  associations  with  other  persons  who  have  like  interests, 
or  whose  interests  are  reciprocal  to  his,  or  on  the  contrary 
they  may  set  him  in  opposition  to  others.  For  interests  may 
conflict.  Interests  of  a  single  individual  may  conflict  with 
other  interests  of  the  same  individual.  Personality  is  not  so 
simple  that  it  consists  of  one  interest  after  another,  each  get- 
ting out  of  the  way  before  the  next  arrives.  Nor  can  it  without 
effort  be  made  a  practicable  co-ordination  of  interests  united 
in  a  reasonably  harmonious  whole.  The  interests  of  one  person 


LXII  TRANSLATORS     INTRODUCTION 

may  bring  him  into  conflict  with  other  persons.  The  ends  of 
different  individuals  may  be  impossible  of  realization  by  both 
of  them.  Even  if  the  question  is  not  one  of  simple  incompatibil- 
ity, an  infinite  amount  of  adjustment  is  necessary  to  avoid  a 
disorderly  pulling  and  hauling  of  interests  in  which  nothing 
worth  while  is  accomplished.  The  problem  is  one  which  has  to 
be  solved  both  for  every  person  individually  and  for  the  group. 
Every  interest  that  the  individual  elects  to  make  his  own  and 
to  pursue  can  be  realized  only  at  the  expense  of  other  interests 
which  he  might  pursue  and  which  he  may  in  certain  cases  feel 
to  possess  a  high  potential  value  for  him.  Every  group  also 
must  reach  some  practicable  co-ordination  of  its  common  in- 
terest with  the  other  individual  interests  of  its  members,  and 
also  with  the  common  interests  of  other  groups  and  with  the 
individual  interests  of  non-members.  The  essence  of  the  prob- 
lem is  adjustment,  compromise,  a  wise  restraint,  and  a  re- 
spect for  all  the  interests  involved. 

This  process  of  adjusting  interests  is  called  evaluation.  It  is 
undertaken  from  all  the  various  points  of  view  from  which  in- 
terests may  be  in  conflict.  The  individual  is  called  upon  to 
decide  what  interests  are  fundamental  for  him  and  what  are 
of  subordinate  importance.  He  must  continually  pass  judg- 
ment upon  the  various  possible  courses  open  to  him;  he  must 
decide  what  he  really  wants,  what  has  value  for  him  when  the 
various  possible  satisfactions  have  been  considered  in  all  their 
consequences  and  bearings.  But  interests  are  not  evaluated 
from  the  point  of  view  of  personal  satisfaction  alone.  They 
are  evaluated  from  the  point  of  view  of  their  effect  upon  the 
associations  in  which  the  individual  has  an  interest  and  these 
associations  are  themselves  manifold.  These  associations  and 
the  ends  they  serve  are  themselves  of  all  possible  degrees  of 
importance,  from  those  which  are  of  a  passing  and  almost 
casual  significance  to  those  which  in  given  cases  are  able  to 
command  the  lives  and  fortunes  of  their  members.  The  inter- 
ests of  groups  also  are  incompatible  or  conflicting,  not  only  as 
ends  requiring  the  support  of  the  individual,  but  also  with  the 


TRANSLATORS     INTRODUCTION  LXIII 

interests  of  other  groups  and  with  the  interests  of  other  in- 
dividuals. These  conflicts  call  continually  for  conscious  adjust- 
ment in  terms  of  the  relative  value  of  the  interests  involved. 
Without  such  evaluation  both  the  life  of  the  individual  and  the 
life  of  the  group  would  be  a  chaos  of  conflicting  interests.  In- 
terests in  themselves  afford  little  or  no  guidance  until  they 
are  clarified  and  stabilized  by  an  estimate  of  their  relative 
worth.  Their  rightfulness  as  guides  of  conduct  depends  upon 
their  being  viewed  in  their  mutual  effects  upon  one  another, 
upon  their  being  winnowed  and  selected,  and  upon  their  being 
brought  into  a  practicable  harmony  with  one  another.  Such  a 
harmony  is  in  no  sense  automatic.  With  habit  or  custom  a  given 
harmony  may  become  largely  automatic  but  in  its  origin  it  is 
the  consequence  of  a  process  which  is  mainly  conscious.  More- 
over, the  adjustment,  in  order  to  be  satisfactory,  requires  as 
wide  a  knowledge  as  possible  of  the  meaning  and  bearing  of  the 
interests  to  be  harmonized.  There  is  no  short  and  easy  rule 
which  can  be  learned  and  applied  to  all  cases.  The  process  is 
piece-meal,  in  the  sense  that  the  whole  range  of  human  in- 
terests is  never  dealt  with  all  at  once,  but  it  goes  on  continually 
in  the  minds  of  all  men  and  any  adjustment  of  interests  that 
may  be  reached  is  subject  to  revision  in  the  light  of  a  shifting 
of  the  interests  and  a  better  knowledge  of  their  bearing  upon 
one  another. 

The  process  of  evaluating  interests,  therefore,  is  the  founda- 
tion both  of  the  achievment  of  personality  by  the  individual 
and  of  the  stability  and  order  of  the  community.  So  far  we  have 
spoken  as  if  it  were  a  process  carried  on  by  each  individual  for 
himself,  though  we  have  insisted  that  the  interests  evaluated 
are  considered  not  only  as  sources  of  personal  satisfaction  but 
also  in  their  bearing  upon  other  interests  having  a  wider  sig- 
nificance. And  in  a  sense  it  is  true  that  evaluation  must  take 
place  always  by  individuals.  The  obvious  reason  for  this  is  that 
there  is  no  other  being  who  can  evaluate.  There  is  no  group 
mind  or  collective  person  by  which  interests  can  be  weighed 
and  estimated.  If  the  adjustment  or  harmonizing  of  interests 


LXIV  TRANSLATORS     INTRODUCTION 

takes  place  at  all,  it  can  do  so  only  by  the  reaction  of  individ- 
ual minds  upon  the  problem  which  their  conflict  presents.  It  is 
indeed  true  that  minds  in  groups  are  different  from  the  same 
minds  not  in  groups  or  in  other  groups,  but  this  does  not  alter 
the  fact  that  all  evaluations  are  some  individual's  evaluations. 
It  is  important,  however,  that  this  proposition  should  not  be 
misunderstood.  To  say  that  evaluation  takes  place  only  in  in- 
dividual minds  should  not  be  confused  with  the  totally  different 
proposition  that  evaluation  is  made  entirely  in  terms  of  the  re- 
latively private  satisfaction  of  the  person  who  forms  the  judg- 
ment. As  we  have  pointed  out  above,  private  satisfaction  is 
merely  one  category  in  terms  of  which  interests  are  judged;  it 
becomes  quite  meaningless  when  it  is  stretched  to  cover  every- 
thing that  the  individual  considers  to  be  valuable.  Men  are 
prone,  no  doubt,  to  attach  undue  importance  to  that  in  which 
they  are  privately  interested,  but  as  a  rule  this  is  a  perfectly 
honest  mistake  concerning  the  actual  importance  of  the  inter- 
ests in  question,  Very  few  men  imagine  that  the  interest  is  im- 
portant merely  because  it  concerns  their  private  satisfaction. 
Private  satisfaction  or  individual  happiness  is  of  course  a  rel- 
evant consideration  in  any  estimate  of  interests  and  one  that 
the  individual  ought  to  take  into  account,  but  even  men  of 
quite  ordinary  intelligence  and  good  will  habitually  make  the 
distinction  between  the  bearing  of  conduct  upon  what  they  re- 
gard as  their  own  private  interests  and  its  bearing  upon  the  pri- 
vate interests  of  others  or  upon  interests  which  are  not  private 
at  all.  Private  satisfaction  is  only  one  of  the  points  of  view  from 
which  interests  are  evaluated,  and  the  ordinary  man  does  not 
as  a  rule  regard  it  as  a  particularly  important  point  of  view.  The 
individual  continually  judges  the  value  of  conduct  from  other 
points  of  view,  such  for  example  as  its  bearing  upon  his  family, 
or  upon  his  church,  or  upon  his  city  or  nation. 

This  process  by  which  interests  come  to  have  for  the  individ- 
ual not  merely  a  certain  appeal  and  attraction  but  a  relatively 
stable  value  is  in  no  sense  due  to  a  unique  faculty  or  intuition 
which  is  able  to  assess  the  value  of  an  interest,  as  one  might 


TRANSLATORS     INTRODUCTION  LXV 

say,  merely  by  inspection.  The  basis  of  the  process  is  compari- 
son, the  weighing  of  relative  probabilities,  the  foresight  of  con- 
sequences, and  the  detection  of  identities  and  differences. 
Like  any  other  operation  of  thought,  therefore,  it  needs  an  ap- 
paratus of  types  and  classes.  Though  carried  on  continually,  it  is 
not  a  process  which  makes  a  fresh  start  with  each  problem  as  it 
is  presented.  The  categories  used  are  carried  over  from  one 
problem  to  the  next  as  more  or  less  permanent  formulae  for  the 
making  of  judgments,  though  also  no  doubt  with  more  or  less 
continual  reconstruction  to  meet  new  difficulties  which  the 
accepted  types  are  not  adequate  to  solve.  There  are  catego- 
ries of  value  just  as  there  are  categories  of  explanation.  As  we 
have  seen,  personal  satisfaction  (in  the  usual  restricted  sense  of 
the  term)  is  one  such  general  class  or  type ;  certain  interests  can 
be  placed  at  once  as  having  a  bearing,  positive  or  negative, 
upon  it  and  their  value  is  so  far  fixed  in  relation  to  other  inter- 
ests, though  of  course  it  often  happens  that  such  interests  may 
have  a  place  also  in  other  categories  which  may  affect  the  final 
judgment  of  their  worth.  Self-culture,  good  taste,  public  serv- 
ice, courage,  honest  dealing  are  other  examples  of  categories 
which  are  constantly  used  in  assessing  the  value  of  specific  in- 
terests. This  dependence  upon  types  is  no  accidental  phase  of 
the  process.  It  is  part  of  the  way  in  which  thought  works.  There 
is  no  intuition  of  value,  just  as  there  is  no  intuition  of  truth. 
There  are  judgments  and  judgment  is  always  a  making  of  com- 
parisons and  a  detection  of  relations.  It  can  take  place  only 
within  an  established  structure  of  knowledge  and  values.  It  is 
of  course  true  that  no  individual  makes  these  categories  wholly 
for  himself.  He  receives  them  in  their  large  outlines  as  part  of 
his  social  heritage  and  holds  most  of  them  in  common  with  his 
associates. 

Thus  it  happens  that  social  institutions  themselves  stand  in 
the  most  intimate  relation  to  the  stable  evaluation  of  interests. 
On  the  one  hand  they  are  supported  by  the  conviction  that  they 
do  represent  and  embody  a  solid  value,  that  they  minister  to 
interests  which  are  not  to  be  neglected.  They  form  the  basis, 

The  modern  idea  of  the  State.  v* 


LXVI  TRANSLATORS     INTRODUCTION 

therefore,  for  further  evaluations.  Thus  the  bearing  of  any  inter- 
est upon  the  value  represented  by  the  family,  for  example,  may 
be  sufficient  to  determine  the  worth  of  that  interest.  On  the 
other  hand,  it  is  typical  of  many  such  associations  that  they  sup- 
ply an  apparatus  for  arriving  at  judgments  of  value  which  are 
accepted  as  more  or  less  objective  by  the  members  of  the  group. 
The  valuation  of  interests  is  too  important  to  be  left  wholly  to 
individual  reactions  occurring  merely  as  occasion  may  dictate. 
This  again  is  no  accidental  feature  of  group-life  or  of  the  pro- 
cess of  evaluation.  The  group  cannot  exist  at  all  except  on  the 
supposition  that  it  preserves  a  practicable  harmony  of  interest. 
The  interests  of  its  members  must  be  harmonized  with  one  an- 
other ;  the  interests  of  individuals  which  might  obstruct  the  re- 
alization of  common  aims  must  be  brought  into  harmony  with 
the  common  interests ;  the  common  interests  of  the  group  must 
be  harmonized  with  the  interests  of  other  groups  or  of  non- 
members.  The  organization  of  the  group  has  to  seek,  therefore, 
not  only  ways  and  means  to  secure  the  common  interest.  It  has 
also  to  set  up  valuations  which  will  settle  the  relative  worth  of 
the  multitude  of  interests  with  which,  in  one  way  or  another, 
the  group  is  in  contact.  Political  and  quasi-political  groupings 
in  particular  are  organized  to  create  such  official  valuations. 
This  organization  of  the  process  of  evaluation  may  be  made 
clearer  by  a  single  example,  the  judicial  process,  which  is  per- 
haps the  oldest  and  most  elemental  function  of  government. 
This  function  is  obviously  the  adjustment  of  conflicts  of  inter- 
est arising  between  the  members  of  the  group.  It  expresses  a 
more  or  less  official  judgment  upon  the  rights  and  wrongs  of 
the  incompatible  claims  advanced.  In  the  past  such  an  evalua- 
tion of  interests  might  take  place  without  creating  an  obliga- 
tion upon  the  part  of  the  judges  or  anyone  else  to  use  coercion 
in  support  of  the  decision.  What  is  arrived  at  is  a  judgment 
looking  to  the  adjustment  of  a  specific  conflict  of  interests, 
such  for  example  as  is  involved  in  a  dispute  over  a  contract  or 
over  the  use  of  a  piece  of  property.  Both  parties  have  interests 
which  they  may  justly  expect  will  be  safeguarded,  but  their 


TRANSLATORS     INTRODUCTION  LXVII 

claims  are  mutually  incompatible.  Almost  any  civil  suit  is  an 
illustration  of  such  a  situation.  If  the  criminal  law  illustrates  it 
less  well,  this  is  because  crime  has  come  to  be  conceived  as  an 
offence  against  the  state.  The  criminal  interest  is  the  extreme 
case  that  cannot  be  adjusted  but  must  be  suppressed.  Never- 
theless, no  enlightened  criminal  jurisprudence  can  regard  sup- 
pression as  an  adequate  solution  except  in  the  relatively  rare 
case  of  a  criminal  who  is  incapable  of  socialized  interests.  The 
more  enlightened  treatment  of  criminals  recognizes  that  here 
too  the  problem  is  one  of  maladjustment  of  interests.  In  cer- 
tain newer  types  of  cases,  such  as  those  which  come  before  ju- 
venile courts,  the  object  is  manifestly  to  preserve  interests  by 
a  process  of  adjustment.  From  the  point  of  view  of  the  group 
itself  this  function  corresponds  to  the  obvious  common  inter- 
est of  eliminating  friction  and  of  preserving  the  peaceful  course 
of  affairs,  and  of  recognizing  all  the  interests  which  need  the 
support  of  organized  authority.  In  this  way  the  administration 
of  justice  is  what  Professor  Duguit  calls  a  public  service.  The 
organization  in  this  case  serves  both  the  purpose  of  adjusting 
conflicts  and  of  providing  the  means  by  which  the  common  in- 
terest can  be  preserved. 

This  illustration  may  serve  further  to  show  the  necessity  of 
the  type  in  organized  as  in  individual  valuations.  The  judicial 
judgment  is  face  to  face  with  a  specific  conflict  of  interests,  an 
accomplished  fact  between  definite  persons  or  corporate  bod- 
ies. Such  an  adjustment  cannot  be  made  in  the  light  merely  of 
an  unformulated  sense  of  the  justice  of  the  particular  issue. 
Such  a  procedure  is  too  uncertain  and  also  imposes  too  great  a 
strain  upon  the  initiative  and  free  intelligence  of  the  judge.  It 
will  be  remembered  that  this  was  precisely  what  Plato  pro- 
posed should  be  done  in  his  Republic,  The  rulers  were  to  be  se- 
lected by  a  long  course  of  education  and  were  then  presumed  to 
possess  a  wisdom  which  would  enable  them  to  determine  what 
was  just  in  each  particular  case  by  a  full  examination  of  the 
facts  of  the  case  itself  and  by  that  alone.  It  was  to  be  a  govern- 
ment of  men  and  not  of  laws.  It  is  obvious  that  if  such  a  system 

The  modern  idea  of  the  State.  v 


LXVIII  TRANSLATORS     INTRODUCTION 

were  possible  it  would  have  advantages  over  one  which  reduces 
large  numbers  of  cases  to  determination  by  a  single  rule.  But 
the  capacity  to  envisage  the  whole  situation  and  to  judge  the 
individual  case  as  a  unique  occurrence  can  be  claimed  by  no 
fallible  human  being.  Human  experience  pronounces  in  favor 
of  a  government  of  laws  rather  than  a  government  of  men.  And 
Plato  himself,  in  his  later  years,  recognized  the  impracticability 
of  his  earlier  ideal,  and  in  his  Laws  laid  down  the  general  prin- 
ciples of  a  legal  system  which  he  believed  should  be  established 
in  the  state. 

The  particular  conflict  has  to  be  brought  under  settled  cat- 
egories of  valuation.  A  general  type  of  interest  has  to  be  sub- 
jected to  a  general  valuation  and  this  general  valuation  has  to 
be  made  the  key  to  a  settlement  of  particular  conflicts.  Homi- 
cide is  a  type  of  invasion  of  a  kind  of  interest  and  calls  for  a  set- 
led  reparation  according  to  its  nature.  Such  general  valu- 
ations of  types  of  interest  are  laws.  They  represent  the  more  or 
less  stable  estimate  of  the  members  of  a  community  regarding 
the  general  importance  to  be  attached  to  a  given  class  of  inter- 
ests. They  may  be  matters  of  custom  or  convention  represent- 
ing the  judgment  partly  of  unorganized  individuals  and  partly 
of  courts  acting  in  an  official  capacity  where  the  generaliza- 
tion has  been  gradually  formed  in  the  course  of  dealing  with 
a  long  series  of  particular  issues.  They  may  be  the  acts  of  a  legis- 
lative body  in  the  effort  to  prepare  a  type  of  adjustment  in 
advance.  In  either  case  they  are  valuations  set  upon  a  certain 
class  of  interests,  setting  limits  and  conditions  within  which  the 
interest  is  to  be  pursued  in  the  light  of  its  bearing  upon  other 
interests. 

This  aspect  of  legislation  is  not  hard  to  illustrate  and  it  em- 
phasizes a  phase  of  law  quite  other  than  the  imperative  phase. 
It  may  be  illustrated  in  its  crudest  form  perhaps  by  the  passage 
of  measures  of  taxation  and  the  appropriation  of  revenues. 
These  are  as  clearly  processes  of  evaluation  as  the  same  kinds  of 
action  when  performed  by  the  individual.  With  a  given  outlay 
only  certain  things  can  be  bought ;  what  is  expended  in  behalf 


TRANSLATORS     INTRODUCTION  LXIX 

of  one  interest  is  inevitably  taken  from  other  interests  upon 
which  it  might  have  been  spent.  Moreover,  levying  taxes  evi- 
dently involves  the  choice  of  the  interests  which  are  to  bear  the 
incidence  of  the  taxation  and  a  decision  regarding  the  distri- 
bution of  the  burden  among  different  interests.  But  the  valua- 
tion of  interests  does  not  stop  with  cases  that  involve  assigna- 
ble monetary  values.  The  establishment  and  development  of  a 
school  system  certainly  demands  the  valuation  of  educational 
aims  and  processes.  There  is  a  variety  of  legitimate  claims  that 
can  be  made  in  connection  with  any  plan  of  education.  There  is 
the  need  of  the  community  for  certain  types  of  good  citizen- 
ship ;  there  is  the  reasonable  claim  of  the  individual  to  an  educa- 
tion which  will  bring  him  some  increment  of  power,  either  in 
the  form  of  efficiency  or  in  the  less  tangible  form  of  spiritual 
self -development ;  there  are  the  manifold  needs  of  the  indus- 
tries for  persons  trained  to  take  a  useful  place  in  the  scheme 
of  production.  All  such  claims  and  many  others  are  reasonable 
but  they  are  all  likely  to  be  more  or  less  conflicting,  and  just  as 
the  problem  has  to  be  solved  separately  by  every  individual,  so 
it  has  to  be  solved  at  large  by  some  kind  of  educational  policy 
for  the  community. 

To  take  another  example,  the  passage  of  a  workingman's 
compensation  act  is  clearly  an  evaluation  of  interests.  So  long 
as  industrial  accidents  occur,  somebody  obviously  has  to  bear 
the  cost  of  them.  If  the  individual  laborer  and  his  family  are 
left  to  bear  them  alone  it  can  only  be  at  the  cost  of  recognized 
interests  both  of  these  individuals  personally  and  of  social  in- 
terests which  they  represent.  The  cost  comes  out  of  their  hap- 
piness, out  of  their  standard  of  living,  out  of  the  education  of 
the  children  in  the  family,  —  in  a  word,  out  of  values  in  which 
they  have  a  vital  interest  and  which  are  matters  also  of  more  or 
less  general  concern.  If,  on  the  other  hand,  the  cost  of  industrial 
accidents  is  to  be  borne  wholly  or  in  part  by  the  community, 
the  burden  must  be  reflected  in  the  tax  rate  and  this  in  turn 
will  more  or  less  affect  a  mass  of  interests  that  is  indescribably 
complex.  Or  again,  if  the  cost  is  to  be  assessed  wholly  or  partly 


LXX  TRANSLATORS     INTRODUCTION 

against  the  industry,  it  may  have  wide-spread  effects  upon  the 
prosperity  of  business  concerns  and  in  the  end  must  appear  in 
the  price  of  goods  and  so  be  passed  on  to  the  whole  body  of 
purchasers.  The  adoption  of  any  sort  of  policy  is  inevitably  a 
decision  that  the  cost  shall  go  to  one  interest  or  another.  The 
assessment  of  the  interests  at  stake  may  be  blind  or  it  may  be 
intelligent,  but  in  any  case  the  policy  adopted  will  necessarily 
be  an  attempt  to  make  effective  some  sort  of  decision  about  the 
relative  value  of  interests  and  about  their  mutual  relationships. 

VIII.       THE   AUTHORITY   OF   LAW 

Let  us  return  now  to  the  question  which  we  set  out  to  examine, 
the  question  of  the  nature  and  justification  of  authority.  We 
have  argued  that  the  law  deals  with  the  manifold  human  in- 
terests which  exist  within  a  community,  that  it  represents  a 
system  of  relatively  stable  judgments  of  value  concerning  these 
interests,  and  that  its  end  is  to  safeguard  as  wide  a  range  of  in- 
terests as  possible,  due  regard  being  given  not  only  to  the  num- 
ber of  interests  but  to  their  intrinsic  importance.  If  this  view  be 
correct,  it  is  obviously  meaningless  to  ask  further  why  law  in 
general  has  authority.  It  has  authority  because  of  its  very  na- 
ture. It  is  idle  to  seek  for  a  value  to  justify  the  process  of  valu- 
ation. It  is  evident  also  where  in  general  the  justification  of  a 
particular  law  or  policy  must  lie.  Like  any  other  problem,  the 
evaluation  of  interests  is  settled  when  it  is  settled  correctly.  In 
other  words,  the  correctness  of  the  solution  cannot  be  judged 
by  its  source.  A  law  must  be  judged  according  to  its  content, 
that  is,  according  to  the  correctness  of  its  estimate  of  the  inter- 
ests with  which  it  deals  and  also  to  its  practical  success  in  mak- 
ing effective  the  valuation  it  expresses.  It  is  clear,  therefore, 
why  this  conception  of  law  gives  a  radically  different  view  of 
authority  from  that  implicit  in  the  doctrine  of  sovereignty.  The 
latter  is  a  purely  formal  conception  of  authority.  The  law  is 
authoritative  because  of  the  source  from  which  it  comes.  It  is 
the  voice  of  a  superior  person,  either  of  an  individual  in  some 
way  designated  as  superior  or  of  the  collective  person  or  state. 


TRANSLATORS     INTRODUCTION  LXXI 

This  view  neglects  the  fact  that,  as  an  evaluation  of  interests,  a 
law  has  to  demonstrate  its  correctness  in  a  way  fundamentally 
like  that  by  which  any  other  decision  is  justified.  Verification 
is  in  terms  of  content  and  not  of  form.  To  urge  formal  correct- 
ness exclusively  is  nothing  but  a  way  of  withdrawing  a  favored 
solution  from  criticism. 

This  conclusion  brings  us  to  the  threshold  of  a  fundamental 
philosophical  problem  into  which,  however,  it  is  not  necessary 
for  us  to  go,  the  problem,  that  is,  of  objective  values.  All  that 
political  philosophy  really  needs  is  the  assumption  that  the 
settlement  of  a  question  of  value  is  not  fundamentally  differ- 
ent from  the  settlement  of  any  other  question.  What  needs 
to  be  excluded  is  the  opposite  assumption,  that  a  value  is  a 
sheer  subjective  preference,  an  assertion  that,  "I  prefer  this 
because  this  is  the  sort  of  thing  I  prefer."  As  a  matter  of  prac- 
tice no  one  doubts  that  questions  involving  the  relative  impor- 
tance of  interests  can  be  clarified  by  thought  and  discussion,  or 
that  the  field  of  possible  agreement  between  different  individ- 
uals is  unlimited  for  all  practical  purposes.  The  conditions  of 
agreement  are  a  knowledge  of  the  interests  at  stake,  a  certain 
respect  for  other  men's  interests,  and  a  sympathetic  apprecia- 
tion of  other  men's  points  of  view.  And  there  is  no  assignable 
limit  to  the  possible  development  of  these  qualities.  On  the 
practical  side  agreement  about  value  is  much  like  agreement 
about  truth.  It  is  a  question  of  getting  those  who  judge  to  see 
the  implications  of  their  judgments  in  terms  of  their  effects 
upon  other  possible  judgments.  Absolute  agreement  may  be 
attainable  in  neither  case,  but  substantial  agreement  is  no 
more  difficult  to  obtain  in  the  one  than  in  the  other.  It  is  about 
as  common  in  one  as  in  the  other. 

In  either  case  no  good  end  is  served  by  exaggerating  the 
amount  of  agreement  that  exists.  There  are  and  always  will  be 
persons  who  cannot  understand  even  mathematics.  There  are 
and  always  will  be  persons  whose  minds  are  opaque  to  given 
kinds  of  value.  So  far  as  concerns  an  individual,  it  is  always 
possible  that  he  may  reach  the  limits  of  his  powers,  either  intel- 


LXXII  TRANSLATORS     INTRODUCTION 

lectual  or  moral,  before  he  can  see  the  point.  On  the  other  hand, 
a  given  individual  may  see  a  point  in  advance  of  that  at  which 
accepted  theory  or  accepted  practice  has  arrived.  He  may  be  a 
genius,  which  means  that  he  may  be  right  while  every  one  else 
is  wrong.  The  appeal  in  such  a  case  must  be  from  Philip  drunk 
to  Philip  sober;  it  must  look  to  some  future  agreement.  But 
there  is  always  the  possibility  that  for  the  time  being  no  agree- 
ment is  possible.  In  the  nature  of  the  case  there  can  be  no  ready- 
made  solution  for  such  situations,  since  the  situation  exists 
precisely  because  the  solution  is  lacking.  All  that  a  general 
theory  can  hope  to  do  is  to  induce  a  sober  acceptance  of  respon- 
sibility by  all  parties,  —  the  limitation  of  coercion  to  cases  of 
real  need  and  a  fair  shouldering  of  the  burden  of  proof  by  the 
dissenting  minority.  But  one  point  at  least  is  clear.  It  is  worse 
than  useless  to  bring  to  bear  upon  such  a  situation  the  ipse  dix- 
it  of  a  merely  formal  authority  claiming  a  right  to  command  by 
virtue  merely  of  status. 

No  theory  of  sovereignty  and  no  respect  for  formal  author- 
ity can  alter  the  fact  that  disagreements  occur  which  are  for 
the  time  being  insoluble,  nor  even  the  fact  that  perhaps  most 
individuals  are  at  times  more  or  less  out  of  accord  with  the 
common  estimate  of  values.  This  is  a  fact  which  is  at  least  as 
vital  to  social  progress  as  the  fact  that  for  most  purposes  a 
substantial  agreement  is  usually  attainable.  It  is  certainly  not 
inconsistent  with  the  assumption,  with  reference  to  values  as 
well  as  with  reference  to  truth,  that  there  is  for  any  problem  an 
optimal  solution,  a  solution  which  would  call  for  no  further 
revision,  the  state  of  the  facts  being  what  it  is.  Our  discussion 
has  enabled  us  to  see  what  the  standing  of  such  an  optimal  so- 
lution is.  It  is  not  an  existing  absolute  authority,  but  a  meth- 
odological ideal. 

It  is  obvious  that  from  the  point  of  view  here  adopted  no 
very  definite  line  can  be  drawn  between  law  and  morality.  So 
far  as  we  are  able  to  see,  this  conforms  accurately  to  the  facts. 
There  is  no  such  line.  The  familiar  distinctions,  such  as  that 
morality  is  relatively  a  matter  of  character  and  law  relatively 


TRANSLATORS     INTRODUCTION  LXXIII 

a  matter  of  overt  action,  or  that  law  is  that  which  the  courts 
will  enforce,  have  a  relative  truth  and  a  relative  utility  for  some 
purposes.  No  such  distinction,  however,  will  bear  analysis  as  a 
theoretical  delimitation  of  different  classes  of  phenomena. 
Broadly  speaking,  the  making  of  law  is  a  case  of  ethical  evalu- 
ation. There  are  ethical  evaluations  which  can  be  little  aided  by 
coercion  because  conformity  of  external  conduct  has  relatively 
little  to  do  with  them.  Such  evaluations  as  a  whole  are  com- 
monly called  moral  as  distinguished  from  legal,  though  it  is  obvi- 
ously false  to  suppose  that  rules  of  law  are  always  or  mainly  en- 
forced by  coercion.  On  the  other  hand,  if  coercion  must  be  used, 
there  is  an  evident  practical  advantage  in  confining  force  to 
constituted  authorities  and  public  agencies.  The  rules  upon 
which  such  bodies  act  are  in  general  called  legal  as  distin- 
guished from  moral,  though  again  it  is  obviously  false  to  sup- 
pose that  constituted  authority  makes  law  by  virtue  of  its 
action.  Any  rule  of  conduct,  whether  called  legal  or  moral,  is 
justified  solely  by  the  fact  that  it  is  right  in  terms  of  its  effects 
on  human  interests.  How  the  rule  is  sanctioned  is  a  practical 
rather  than  a  theoretical  consideration. 

Both  morality  and  law  have  their  common  sources  in  the 
process  of  evaluating  interests  which  Professor  Krabbe  refers  to 
as  the  "sense  of  right"  (Rechtsbewusstseiri)  and  which  he  discusses 
at  length  in  Chapter  III  of  the  work  here  translated.  Law  exists 
only  because  men  do  continually  value  and  revalue  interests, 
because  they  do  aim  at  a  harmony  of  interests,  because  they 
seek  to  safeguard  their  own  interests  and  recognize  the  pro- 
priety of  respecting  the  interests  of  others.  This  sense  of  mu- 
tual rights  and  obligations  is  the  bed-rock  upon  which  political 
society  is  built.  Upon  it  are  founded  political  organizations, 
which,  broadly  speaking,  exist  first  in  order  that  the  valuation 
of  interests  may  be  more  certainly  ascertained,  and  second  in 
order  to  insure  that  public  interests  be  preserved  and  the  value 
imputed  to  them  be  realized.  This  brings  us  finally  to  Professor 
Krabbe's  theory  of  the  state.  In  conclusion  we  shall  summarize 
briefly  the  chief  principles  involved  in  his  theory. 


LXXIV  TRANSLATORS     INTRODUCTION 

IX.       THE    MODERN    IDEA    OF   THE    STATE 

The  fundamental  aspect  of  the  modern  state  is  its  thorough- 
going subjection  to  law.  The  law  represents  an  actually 
achieved  evaluation  of  interests.  Such  an  evaluation  of  inter- 
ests yields  the  standards  by  which  conduct  is  judged  and 
gives  rise  to  such  broad  categories  as  right  and  wrong,  the 
lawful  and  the  unlawful.  It  is  such  an  evaluation  that  gives 
power  to  those  institutions  which  exist  partly  as  means  to  the 
clearer  and  more  authoritative  valuation  of  interests  and  partly 
to  foster  such  interests  as  it  may  be  deemed  advisable  to  en- 
trust to  an  official  organ.  In  the  end  such  institutions  are  legal 
institutions  and  rest  upon  men's  judgment  of  the  substantial 
value  of  the  human  interests  which  are  sustained  by  them.  At 
any  given  time,  no  doubt,  any  such  collective  body  of  valua- 
tions contains  much  that  is  merely  traditional,  for  it  does  not 
lie  within  human  power  to  create  the  system  anew,  nor  does 
valuation  ever  start  with  a  clean  slate.  There  is,  moreover,  a 
wide  range  within  which  individuals  differ  in  their  power  to 
grasp  the  significance  of  the  institutions  under  which  they  live. 
Change  takes  place  constantly  in  the  details  and  occasionally 
reaches  to  a  revision  of  the  main  outlines  of  the  structure.  It 
starts  as  a  rule  with  the  more  original  and  venturesome  indi- 
viduals, whose  natural  powers  or  peculiar  circumstances  enable 
them  to  see  a  possible  new  adaptation  of  old  ideas.  Neverthe- 
less, the  solid  structure  rests  upon  its  general  harmony  with 
human  needs,  its  conformity  with  that  which  men  feel  to  be  fit 
and  right,  and  the  feeling  is  largely  a  conscious  acceptance  of 
the  values  which  institutions  serve  to  support.  Political  or- 
ganization, therefore,  is  rooted  in  law,  in  settled  ideas  of  right 
and  wrong,  good  and  bad,  and  these  ideas  in  turn  are  rooted  in 
consciousness,  from  which  the  notion  of  valuation  is  insepara- 
ble. The  fundamental  concept  for  the  theory  of  the  modern 
state  is  law. 

It  is  obvious  that  law  is  one  expression  among  others  of  what 
is  called  generally  the  civilization  or  the  culture  of  a  commu- 


TRANSLATORS  INTRODUCTION       LXXV 

nity  and  that  the  development  and  effective  working  of  any 
such  system  of  common  evaluations  is  not  independent  of  the 
other  factors  of  culture.  It  depends,  for  example,  upon  that 
free  interchange  of  ideas  which  is  certainly  rendered  easier,  if 
not  made  possible,  by  a  common  language.  It  may  be  aided  by 
a  common  religion ;  it  is  certainly  weakened  by  a  wide  diver- 
gence of  religious  ideas,  especially  if  these  ideas  find  expression 
in  antagonistic  religious  institutions.  A  common  law  is  evident- 
ly very  closely  related  to  that  intangible  complex  of  ideals 
which  we  call  nationality,  for  the  latter  is  very  largely  though 
not  exclusively  just  the  ideal  of  a  common  law  and  of  common 
political  institutions  to  express  such  a  law.  A  common  law  can- 
not flourish  except  where  there  exists  a  common  mentality  in 
which  it  can  thrive,  and  it  may  be  laid  down  as  a  general  prop- 
osition that  the  thinner  and  weaker  this  common  mentality 
is  in  a  community,  the  narrower  the  range  of  interests  that  can 
reach  an  accepted  valuation  in  that  law.  When  the  basis  of 
common  agreement  is  slight,  the  law  must  be  more  general; 
more  must  be  left  to  local  groups  where  a  better  basis  exists. 

In  general  terms,  then,  the  state  may  be  defined  as  a  commu- 
nity in  which  there  does  exist  a  common  law.  It  is  an  associa- 
tion of  men,  occupying  a  definite  territory,  in  which  a  common 
sense  of  right  issues  in  general  agreement  regarding  the  value 
of  both  public  and  private  interests.  Such  common  agreement, 
as  we  have  seen,  expresses  itself  in  organs  which  clarify  and 
make  explicit  the  common  judgments  of  right  and  which  also 
serve  to  maintain  common  interests.  We  must  examine  some 
of  the  more  important  elements  of  this  definition  and  make 
clear  some  of  its  implications. 

It  is  evident  that  as  above  defined  state  is  a  relative  term. 
There  may  be,  and  in  fact  there  often  are,  communities  within 
communities,  each  marked  with  a  common  agreement  about 
what  is  right.  The  smaller  local  community  may  have  a  well- 
defined  common  law  which  does  not  extend  to  the  more  inclu- 
sive community,  though  the  latter  may  also  have  a  well-de- 
fined common  law  which  expresses  the  value  of  those  wider 


LXXVI  TRANSLATORS     INTRODUCTION 

interests  which  are  common  to  both.  Any  federalized  state  is 
an  example  of  such  an  arrangement.  The  local  community  has 
in  fact  some  degree  of  autonomy ;  its  own  peculiar  law  is  effec- 
tive for  it.  Moreover,  the  law  of  the  federal  state  recognizes 
such  local  autonomy;  its  maintenance  is  a  legally  recognized 
value  in  the  more  inclusive  system  of  law.  Thus  there  is  a 
recognized  autonomy  and  subordination  of  one  body  of  law 
within  another,  together  with  a  recognized  organization  for 
settling  the  limits  of  jurisdiction.  On  the  other  hand,  there  are 
communities  which  are  relatively  independent  in  the  establish- 
ment of  their  legal  standards,  in  the  sense  that  they  are  not 
explicitly  a  part  of  any  recognized  system  of  law  in  which  they 
find  their  place  marked  out  for  them  by  judgment  of  a  larger 
community.  Such  communities  correspond  to  the  sovereign 
states  of  ordinary  political  theory.  Nevertheless,  it  is  to  be 
noted  that  even  in  this  case  independence  is  only  relative.  There 
is  no  organized  community  having  a  common  law  capable  of 
imposing  its  values  upon  them.  But  there  are  no  intrinsic  limi- 
tations to  community  itself  except  the  natural  limitations  that 
control  the  making  of  common  judgments  of  value.  And  these 
natural  limitations  can  expand  or  contract  with  those  circum- 
stances which  enable  men  to  reach  a  basis  of  common  agree- 
ment. Thus,  as  we  have  seen,  there  is  a  more  or  less  binding 
body  of  conventions  and  agreements  in  international  law  which 
do  to  some  extent  control  the  acts  even  of  the  more  powerful 
nations  and  may  be  virtually  coercive  upon  the  less  powerful. 
How  far  such  general  agreement  can  go,  how  wide  a  range  of 
conduct  it  can  be  made  to  control,  depends  upon  the  extent  to 
which  a  body  of  common  interests  can  grow  and  the  degree  of 
agreement  that  can  be  reached  in  their  evaluation.  In  any  case, 
however,  the  term  state  is  relative.  It  is  in  fact  used  of  commu- 
nities which  are  definitely  subordinate  as  well  as  of  those  which 
are  relatively  independent. 

It  is  evident  also  that  in  the  actual  configuration  of  states 
at  the  present  time  there  is  a  large  element  of  what  may  be 
called  historical  accident.  We  have  insisted  that  the  rise  of  the 


TRANSLATORS     INTRODUCTION  LXXVII 

national  state  in  the  sixteenth  and  seventeenth  centuries  was 
closely  bound  up  with  the  extension  of  royal  authority.  Such 
authority  frequently  did  not  succeed  in  making  itself  co-exten- 
sive with  nationality.  It  might  fail  to  reach  the  limits  of  the 
potential  nation  or  it  might  pass  those  limits  and  subject  part 
or  all  of  another  nationality  to  its  power.  The  territorial  limits 
of  the  state,  therefore,  were  often  drawn  along  arbitrary  lines, 
so  far  as  any  modern  conception  of  political  authority  is  con- 
cerned. The  Revolutionary  Period  found  the  same  royal  au- 
thority spanning  pretty  diverse  systems  of  law,  as  in  France, 
or  a  fairly  well  unified  system  of  law  administered  by  diverse 
royal  authorities,  as  in  Germany.  Out  of  this  welter  of  inconsist- 
encies the  existing  political  units  grew  up,  doubtless  with  a 
tendency  to  make  the  authority  of  the  state  more  and  more 
coincident  with  legal  unity,  but  without  ever  arriving  at  that 
end.  For  this  reason  anomalies  persist  which  are  virtually  acci- 
dents, from  the  point  of  view  of  present-day  political  philoso- 
phy. The  mere  inclusion,  however,  of  diverse  legal  communities 
under  one  central  control  tends  to  the  development  of  common 
interests  and  eventually  of  a  common  law.  Thus  states  which 
originally  may  have  been  political  anomalies  from  the  point 
of  view  of  theory  may  in  time  become  normal. 

As  we  have  indicated  above,  the  organs  which  arise  in  the 
community  as  a  consequence  of  the  evaluation  of  interests 
serve  a  twofold  function.  In  the  first  place,  some  of  them  have 
what  is  called  the  law-making  function.  That  is,  they  clarify 
and  systematize  and  put  in  more  effective  form  the  evaluations 
which  in  any  case  take  place  spontaneously  without  the  inter- 
vention of  organization.  Primarily  this  is  the  function  which  is 
served  in  the  modern  state  by  the  representative  legislature. 
On  the  other  hand,  there  arise  organs  whose  function  it  is  to 
preserve  and  care  for  particular  interests  which  are  deemed  to 
be  of  special  public  importance  and  which  are  also  deemed  to 
require  the  care  of  some  such  special  governing  body.  Professor 
Duguit,  as  we  have  seen,  has  emphasized  the  fact  that  the 
growing  number  of  interests  which  require  such  care  and  the 


LXXVIII  TRANSLATORS     INTRODUCTION 

corresponding  proliferation  of  governing  organs  for  this  pur- 
pose is  an  outstanding  feature  of  the  development  of  govern- 
ment at  the  present  time.  Not  only  has  there  been  an  increase 
of  what  are  recognized  as  executive  departments,  but  as  the 
government  was  forced  to  assume  duties  farther  and  farther 
removed  from  the  lines  of  traditional  administration,  there 
have  been  added  boards  and  commissions  whose  action  is  in 
fact  largely  independent.  They  show  the  tendency  to  approxi- 
mate the  form  of  self-governing  corporations,  subject  of  course 
to  more  or  less  control  either  by  the  executive  or  by  the  legisla- 
ture, at  least  so  far  as  their  major  policies  are  concerned.  Such 
boards  are  clearly  agencies  for  the  rendering  of  public  services 
or  for  the  care  of  public  interests.  Such  services  have  come  to 
make  up  a  large  proportion  of  all  the  work  done  by  the  agen- 
cies of  government  and  this  has  led  to  Professor  Duguit's  con- 
ception of  the  state  as  a  collection  of  public  services.  In  other 
words,  the  public  service  is  the  type  of  governmental  activity. 
The  traditional  functions  of  government,  such  as  the  adminis- 
tration of  justice  and  ordinary  executive  action,  are  them- 
selves public  services. 

In  view  of  the  theory  developed  in  this  book,  however,  it  is 
clear  that  the  state  is  not  to  be  identified  with  any  of  the  organ- 
izations which  arise  in  the  community  to  serve  the  ends  of 
law.  It  is  not  to  be  identified  with  organs  having  primarily  a 
legislative  function  because  these  organs  do  not  in  fact  create 
law.  They  are  instruments  to  "find"  law,  to  develop  and  clarify 
it,  to  make  it  effective  as  expressing  the  true  value  of  interests 
both  public  and  private.  But  public  organs  for  this  purpose 
have  their  roots  in  the  fact  that  evaluation  of  this  sort  goes  on 
continually  in  an  unorganized  way  by  the  judgments  which 
men  form  as  individuals  and  in  groups  regarding  the  value  of 
interests.  As  Preuss  insists,  legislatures  do  not  make  law  out  of 
nothing.  They  organize  the  means  for  making  a  judgment,  but 
judgment  is  an  indefeasible  aspect  of  men's  minds  in  a  commu- 
nity. Moreover,  such  organizations,  however  well  developed 
they  may  be,  do  not  supersede  the  judgment  of  men  singly  or 


TRANSLATORS     INTRODUCTION  LXXIX 

in  groups  regarding  the  value  of  interests.  Such  judgment  con- 
tinues to  take  place  more  or  less  independently  of  the  action 
of  legislatures.  In  the  form  of  custom  or  convention  it  often 
succeeds  in  altering  the  accepted  law  without  action  by  any 
legislative  organ.  The  ultimate  law-making  power  is  nothing 
but  human  judgment  itself  acting  upon  human  interests  and 
deciding  with  reference  to  their  relative  value.  The  state,  there- 
fore, is  the  community  acting  in  its  collective  capacity  to 
recognize  values.  Nevertheless,  it  is  easy  to  see  why  such  theo- 
ries as  that  of  parliamentary  sovereignty  have  fixed  upon  the 
legislature  as  the  central  body  in  the  state.  So  long  as  such  a 
body  has  an  unquestioned  authority,  its  enactments  may  be 
taken  as  prima  facie  law,  though  even  a  superficial  examina- 
tion of  law  shows  its  dependence  upon  the  community  and  its 
public  opinion.  It  is  this  fact  which  the  theories  of  popular 
sovereignty  vaguely  express,  while  they  retain  the  fiction  of 
law  as  a  fiat  of  will  which  obtains  an  ethical  justification 
through  consent. 

On  the  other  hand,  it  is  no  less  an  error  to  identify  the  state 
with  the  collection  of  agencies  which  function  as  preservers  of 
public  interests.  This  is  a  fundamental  blunder  because  it 
misses  the  central  point  of  the  theory  of  the  modern  state, — the 
fact  that  all  such  agencies  are  creatures  of  the  law.  The  law  is 
the  foundation  of  them  all  and  for  this  reason  law  rather  than 
public  service  must  be  the  basic  concept  from  which  political 
theory  starts.  It  is  the  failure  to  accept  this  principle  which 
leads  Professor  Duguit,  who  regards  the  state  as  a  collection  of 
public  services,  to  the  assertion  that  the  superior  power  of  the 
ruling  class  is  a  sheer  fact  which  cannot  be  justified,  though  he 
regards  the  rulers  as  subject  to  the  law  of  social  solidarity.  But 
surely  nothing  is  more  obvious  than  the  fact  that,  while 
sheer  power  is  not  excluded  from  modern  government,  the 
power  of  rulers  is  mainly  and  increasingly  legal  power.  We  have 
pointed  out  how  this  ideal  of  government  subject  to  lawful  re- 
sponsibility and  with  legal  safeguards  to  the  citizen  has  run 
persistently  through  modern  political  theory  and  has  embodied 


LXXX  TRANSLATORS     INTRODUCTION 

itself  more  and  more  in  modern  political  practice.  The  state 
is  not  a  collection  of  public  services.  The  state  is  the  commu- 
nity which  by  its  establishment  of  legal  values  creates  agencies 
for  the  rendering  of  public  services  and  the  maintenance  of 
public  interests. 

There  is  still  another  respect  in  which  the  identification  of 
the  state  with  public  services  is  an  error.  It  gives  rise  to  a  one- 
sided emphasis  upon  the  interests  which  the  law  exists  to  sup- 
port. It  is  evident  that  the  law  does  not  preserve  public  in- 
terests alone,  unless  the  term  is  used  in  a  sense  so  broad  that  it 
loses  its  definite  meaning.  Whether  an  interest  is  entrusted  to 
a  public  agency  depends  not  upon  the  recognition  of  that  in- 
terest as  having  a  value  which  must  be  preserved,  but  merely 
upon  the  conviction  that  public  safety  or  well-being  demands 
that  the  interest  be  conducted  in  that  way.  Even  quite  personal 
and  individual  interests  receive  the  sanction  and  protection  of 
law;  they  are  recognized  as  having  a  value  which  must  be 
preserved.  Moreover,  many  activities  carried  on  quite  volun- 
tarily by  individuals  or  voluntary  associations  are  of  the  ut- 
most importance  to  the  community;  they  may  be  public  in- 
terests in  every  sense  in  which  an  activity  managed  by  a  gov- 
ernmental agency  is  a  public  interest.  It  is  to  be  observed  that 
in  all  these  cases,  however  the  activity  is  directed  and  whether 
the  interest  be  deemed  public  or  private,  it  is  protected  by  law 
and  its  protection  is  an  expression  of  the  value  attributed  to 
it  in  the  law.  The  action  of  a  private  person  and  that  of  an 
official  are  subjected  to  one  and  the  same  control,  namely  that 
of  law,  and  the  rights  and  powers  of  each  are  defined  by  law. 
Public  and  private  interests  are  not  defined  by  their  relation 
to  the  state  but  by  the  manner  in  which  they  are  conducted. 
Public  interests  are  not  conducted  by  the  state,  but  by  govern- 
ing agencies  created  by  law  for  the  purpose. 

The  confusion  of  the  state  with  the  agencies  of  government, 
and  also  the  confusion  of  the  two  functions  of  declaring  law 
and  rendering  public  services,  have  been  persistent.  The  reason 
is  no  doubt  in  part  historical.  The  absolute  monarchy,  from 


TRANSLATORS     INTRODUCTION  LXXXI 

which  the  modern  state  developed,  united  both  the  making 
of  law  and  the  care  of  such  public  services  as  the  army,  the 
police,  and  the  judiciary  in  one  person,  the  king.  It  was  not 
until  the  predominance  of  the  legislature  under  constitutional 
government  was  assured  that  legislation  assumed  the  independ- 
ence and  the  importance  which  it  possesses  in  the  modern 
state.  At  the  same  time,  however,  the  growing  complexity  of 
government  tended  to  obscure  the  distinction  between  legisla- 
tion and  public  services,  since,  as  a  consequence  of  this  com- 
plexity, other  agencies  besides  the  legislature  came  to  have 
quasi-legislative  functions.  The  traditional  legislative,  execu- 
tive, and  judicial  functions  are  no  longer  entrusted  to  distinct 
organs,  though  they  may  for  certain  purposes  be  distinguished 
as  types  of  activity.  But  in  any  case  the  state  is  not  to  be 
identified  with  any  organization. 

The  theory  presented  in  this  book  attempts  an  explanation 
of  the  modern  state  in  terms  of  the  sovereignty  of  law.  It  is 
not  necessary  to  imagine  a  hypothetical  entity  or  organism  to 
which  a  quasi-personal  authority  can  be  imputed.  The  theory 
starts  simply  from  the  community  itself  with  the  net-work  of 
jural  and  moral  relations  subsisting  between  its  members.  The 
agencies  of  government  fulfil  their  functions  only  in  connec- 
tion with  these  established  relations.  The  theory  has  at  least 
the  merit  of  moving  in  the  circle  of  realities.  It  rejects  such 
fictions  as  sovereignty  and  it  cuts  the  ground  from  under  all 
merely  formal  schematizing  of  law.  It  is  in  obvious  relation  to 
other  tendencies  in  the  social  sciences  generally  and  in  political 
theory  especially.  As  the  reader  will  see,  it  is  written  with  the 
drift  of  affairs  in  view.  Speculation  might  easily  be  offered  as 
to  the  effect  of  this  drift  upon  the  agencies  and  organization  of 
government.  It  is  not,  however,  the  province  of  the  political 
philosopher  to  create  imaginary  constitutions  or  schemes  of 
government.  Enough,  if  the  general  implications  of  the  dy- 
namic ideas  can  be  made  more  clear.  G.  H.  S. 

W.  J.  S. 


AUTHOR'S  PREFACE 

The  theory  of  the  state  developed  in  this  book  grew  out  of 
the  results  of  my  book,  Die  Lehre  der  Rechtssouverdnitdt  (1906). 
The  latter  was  in  the  main  a  criticism  of  the  theory  of  the 
sovereignty  of  the  state,  while  the  present  volume  aims  chiefly 
to  explain  the  positive  principles  of  the  opposed  theory  of  the 
sovereignty  of  law  and  thus  to  formulate  the  modern  idea  of 
the  state. 

This  book  also  was  written  in  Dutch,  my  mother  tongue,  but 
has  been  translated  into  a  language  more  accessible  to  foreign- 
ers. For  this  purpose  I  have  chosen  German  again,  because  my 
conclusions  are  directed  especially  against  those  of  German 
political  science. 

The  translation  is  based  upon  the  volume  which  was  pub- 
lished in  Dutch  under  the  same  title  in  1915  but  which  was 
completed  before  the  War.  Later  I  published,  also  in  Dutch, 
a  work  entitled  Het  Rechtsgezag  (1917),  which  contains  a  de- 
fense and  an  elaboration  of  the  modern  idea  of  the  state,  called 
forth  by  the  criticisms  which  appeared  in  this  country.  This 
work  has  been  incorporated  in  the  present  volume.  The  German 
edition,  therefore,  embraces  both  the  Dutch  works  mentioned 
above. 

Leyden,  May,   1919.  H.  K. 


INTRODUCTION 

THE   MODERN   IDEA  OF  THE   STATE 

The  basis  of  the  rulership  (Herrschaft)  which  is  essen- 
tial to  the  idea  of  the  state  is  a  fundamental  question 
which  political  theory  must  reconsider.  The  current 
conception  of  the  state,  growing  out  of  the  absolute 
form  of  government,  regards  it  as  an  original  manifes- 
tation of  power,  endowed  by  its  very  nature  with  the 
right  of  rulership. 

After  the  theory  of  the  legal  state  (Rechtsstaat)  had 
been  developed,  there  arose  a  conflict  between  this 
conception  and  that  of  an  equally  original  manifesta- 
tion of  power,  the  law.  This  leads  to  the  theory  that  the 
state  is  subject  to  law,  or,  in  the  well-known  formula  of 
Laband,  "that  the  state  can  require  no  performance 
and  impose  no  restraint,  can  command  its  subjects  in 
nothing  and  forbid  them  in  nothing,  except  on  the  ba- 
sis of  a  legal  prescription."  l) 

Nevertheless,  political  theory  cannot  even  now  bring 
itself  to  abandon  the  old  conception  of  the  state  as  an 
original  manifestation  of  power.  Thus  it  is  involved  in 
an  insoluble  contradiction,  for  it  must  now  accept  the 
hypothesis  of  a  dualism  of  powers ;  namely,  that  ot  the 
state  and  that  of  law.  The  efforts  to  overcome  this  dual- 


*)  Staatsrecht  des  deutschen  Reichs,  Ed.  4,  Vol.  II,  p.  173. 
The  modern  idea  of  the  State. 


2  THE   MODERN   IDEA  OF  THE   STATE 

ism  and  to  explain  the  subordination  of  the  state  to 
law  have  failed  to  achieve  their  object. 

The  actual  course  of  public  affairs,  however,  has 
given  rise  to  an  idea  of  the  state  which  eliminates  the 
difficulties  of  political  theory.  This,  the  modern  idea  of 
the  state,  recognizes  the  impersonal  authority  of  law  as 
the  ruling  power.  In  this  respect  it  accepts  the  stand- 
point of  the  theory  of  the  legal  state  as  this  was  for- 
mulated by  Laband.  But  it  draws  the  ultimate  conclu- 
sions from  the  ideas  which  lie  at  the  basis  of  this  theory. 
It  no  longer  holds  that  the  state  subordinates  itself  to 
the  law,  but  insists  that  the  authority  of  the  state  is 
nothing  other  than  the  authority  of  law.  Hence  there  is 
only  one  ruling  power,  the  power  of  law.  According  to 
this  view,  the  state  is  not  coerced  by  law,  but  is  rather 
endowed  with  the  authority  of  law.  The  law  is  not  a  su- 
perior and  the  state  a  subordinate  power,  but  the  au- 
thority inherent  in  the  state  and  the  authority  of  the 
law  are  identical,  so  that  the  basis  of  the  rulership  of 
the  state  is  coincident  with  the  binding  force  of  the  law. 

The  present  treatise  aims  to  present  this  modern  idea 
of  the  state. 


CHAPTER  I 

THE  AUTHORITY  OF  THE  STATE  AND  THE 
AUTHORITY  OF  LAW 

I.  The  Opposition  between  the  Old  and  the  New  Idea  of 
the  State.  As  was  pointed  out  in  the  Introduction,  the 
modern  idea  of  the  state  came  to  dominate  political 
practice,  while  political  theory  still  maintained  the  old 
view  of  the  state  derived  from  absolutism.  Theory  has 
not  taken  account  of  the  change  in  the  relations  be- 
tween rulers  and  subjects  which  has  gradually  come 
about  during  the  last  half  century,  or  at  least  has  not 
done  so  adequately. 

For  centuries  our  life  has  been  dominated  by  the 
idea  of  a  sovereign,  having  a  subjective  right  to  rule, 
and  of  a  people,  standing  in  a  relation  of  political  sub- 
ordination. This  sovereign  was  conceived  as  embodied 
either  in  a  prince  or  in  an  assembly,  and  consequently 
its  right  to  rule  was  viewed  as  a  personal  and  subjective 
right.  Since  the  Middle  Ages  political  theory  has  con- 
tinually discussed  the  question  of  the  origin  of  this  per- 
sonal right  of  sovereignty  and  the  purposes  to  which  it 
must  be  applied,  and  the  limitations  which  must  in  con- 
sequence be  placed  upon  the  sovereign's  right  to  rule. 
We  may  pass  over  the  theories  relating  to  these  ques- 
tions, since  practically  the  will  of  the  sovereign,  just 


4  THE   MODERN   IDEA  OF  THE   STATE 

because  it  was  the  will  of  the  sovereign,  was  recognized 
as  binding  upon  all  subjects. 

Alongside  the  authority  of  the  sovereign,  however, 
there  was  from  the  beginning,  indeed  before  the  devel- 
opment of  the  idea  of  sovereignty,  another  authority : 
that  of  law.  This  law  governed  the  mutual  relation- 
ships between  the  individual  members  of  society  and 
was  for  a  long  time  looked  upon  as  a  source  of  author- 
ity quite  as  independent  as  that  embodied  in  the  sover- 
eign. In  many  ways  the  fact  has  been  established  that 
the  authority  of  the  sovereign  was  limited  by  the  so- 
called  rights  of  the  people.  The  sovereign  could  change 
this  law  of  the  people  only  in  co-operation  with  those 
members  of  society  whose  social  standing  was  recog- 
nized by  the  law.  The  consent  of  the  classes  affected  was 
necessary  in  order  to  abridge  any  of  their  rights  in  the 
interest  of  the  sovereign,  as  in  the  expropriation  of  prop- 
erty or  the  levying  of  taxes.  In  other  respects,  the 
people's  law  grew  and  changed  without  assistance  from 
the  sovereign,  who  limited  himself  to  maintaining  and 
enforcing  the  legal  order. 

The  eighteenth  century  brought  a  change  in  the  re- 
lationship between  the  sovereign  and  the  people's  law 
in  favor  of  the  authority  of  the  sovereign,  \\hen  the 
sovereign  began  more  and  more  to  concern  himself  with 
the  most  diverse  public  interests,  and  the  number  of  his 
decrees  in  this  field  multiplied,  a  so-called  public  law 
began  to  encroach  upon  the  old  common  law  as  the  rui- 
ng power  in  social  life.  It  was  not  to  be  doubted  that 
the  validity  of  this  public  law  was  derived  exclusively 
from  the  will  of  the  sovereign;  and  it  became  a  ques- 


AUTHORITY   OF   STATE    AND   LAW  5 

tion  whether  the  binding  force  of  the  other  element  in 
the  social  order,  which  was  embodied  in  the  people's 
law,  was  not  also  to  be  traced  back  to  the  authority  of 
the  sovereign.  To  be  sure,  this  law  had  not  been  cre- 
ated or  promulgated  by  the  sovereign,  but  the  care  for 
its  maintenance  and  enforcement  had,  nevertheless, 
been  assumed  by  him.  It  was,  indeed,  precisely  this  care 
for  the  administration  of  the  people's  law  that  formed 
the  connecting  link  which  made  it  possible  to  root 
the  binding  force  of  all  law  in  the  will  of  the  sovereign. 
Thus  the  dualism  of  two  independent  authorities,  that 
of  law  and  that  of  the  sovereign,  was  eliminated.  The 
conception  of  law  as  a  product  of  reason,  which  gained 
favor  in  the  eighteenth  century,  gave  support  to  this 
theory,  since  reason  was  much  more  likely  to  be  found 
in  the  sovereign  than  in  the  people.  And  when,  more- 
over, the  sovereign  authority  was  transferred  from  the 
old  historical  persons  and  groups,  in  whom  it  had  been 
vested,  to  the  people  themselves,  the  tendency  to  look 
upon  all  law  as  emanating  from  the  sovereign  was 
still  further  strengthened  by  the  theory  of  popular  sov- 
ereignty, in  which  the  people's  law  and  the  law  of  the 
sovereign  are  identified. 

This  change  established  both  theoretically  and  prac- 
tically the  idea  of  the  sole  rulership  of  positive  law  as 
the  expression  of  the  sovereign  will  and  consequently 
as  the  expression  of  law  in  general.  Thus  the  idea  of  sov- 
ereignty attained  its  highest  development.  This  idea 
of  sovereignty  still  holds  political  theory  under  its  spell. 
It  has  sought  to  free  itself  merely  from  the  idea  that  the 
sovereign  possesses  a  personal  right  to  rule.  Not  the 


6  THE   MODERN   IDEA  OF  THE   STATE 

king  but  the  state  is  now  recognized  as  the  possessor  of 
the  sovereign  authority;  but  since  the  state  is  regarded 
as  a  legal  person  and  so  requires  organs  for  willing  and 
acting,  these  organs  now  become  bearers  of  the  sov- 
ereign authority,  and  the  idea  of  sovereignty  has  in  fact 
remained  undisturbed,  even  in  its  aspect  of  a  personal 
right  to  rule.  To  this  sovereign,  or  according  to  modern 
terminology  to  the  state,  is  now  attributed  that  ultimate 
and  unlimited  power  so  frequently  referred  to  in  the 
literature  of  the  subject.  The  power  of  the  state,  says 
Maurenbrecher,  is  irresistible,  infallible,  holy.  Otto 
Mayer  speaks  of  the  "unconditioned  predominance  of 
the  state's  authority,"  and  of  "the  state's  capacity  to 
exercise  a  legally  paramount  will;"  Jellinek  speaks  of 
the  "unconditioned  enforcement  of  its  own  will  against 
others;"  and  Laband  discusses  "rulership"  as  the  "spe- 
cific prerogative  of  the  state."  All  these  characteriza- 
tions grow  directly  out  of  the  idea  of  absolute  mon- 
archy. 

II.  The  Rise  of  the  Modern  Idea  of  the  State.  The  idea 
of  the  state  which  adopts  as  its  central  conception,  an 
assumed  right  to  rule  vested  in  a  specific  person,  fell 
into  disrepute  with  the  introduction  of  the  constitu- 
tional system,  even  though  this  right  was  exercised  in 
the  name  of  the  state  as  a  legal  person.  The  will  of  the 
old  historical  possessor  of  sovereign  authority  is.no 
longer  binding  in  and  of  itself ;  the  co-operation  of  par- 
liament is  required.  In  parliament,  however,  it  is  a 
changing  majority,  composed  now  of  certain  persons 
and  now  of  others,  whose  co-operation  suffices.  Conse- 


AUTHORITY  OF  STATE   AND   LAW  7 

quently  the  exercise  of  the  sovereign  authority,  so  far 
as  it  concerns  parliament  at  least,  no  longer  rests  in  the 
hands  of  specific  persons.  In  proportion,  therefore,  as 
the  decisive  power  in  the  state  devolves  upon  parlia- 
ment, it  becomes  evident  that  the  positive  law  owes  its 
validity  to  an  authority  which  in  the  concrete  is  con- 
stantly changing,  but  which  in  the  abstract  is  personi- 
fied as  the  "legislative  power."  Consequently  it  is  also 
evident  that  the  authority  of  positive  law  requires  an- 
other support  than  that  which  is  found  in  the  will  of  par- 
ticular members  of  parliament. 

This  circumstance  involves  the  necessity  of  recogniz- 
ing in  positive  law  something  other  than  the  will  of  the 
traditional  sovereign.  The  fact  that  parliament  is  elected 
by  and  from  the  people  favors  the  view  that  it  is  an 
organ  of  the  people's  sense  of  law  and  right.  Accordingly 
it  would  be  precisely  this  sense  of  right  which  is  ex- 
pressed in  the  positive  law.  Thus  a  completely  new 
basis  for  the  authority  of  positive  law  comes  into  view. 
Not  the  will  of  a  sovereign  who  exists  only  in  the  imag- 
ination, but  the  legal  conviction  of  the  people  lends 
binding  force  to  positive  law ;  positive  law  is  valid,  there- 
fore, only  by  virtue  of  the  fact  that  it  incorporates 
principles  of  right  (Recht). 

With  this  new  theory  of  the  validity  of  positive  law, 
there  comes  also  as  a  practical  consequence  of  the  con- 
stitutional system  the  possibility  of  subjecting  the 
bearer  of  the  earlier  sovereign  authority,  the  king,  to  the 
positive  law.  In  practice  it  was  already  conceded  that 
the  state  might  be  bound  by  the  common  civil  law. 
This  was  explained  by  a  theoretical  fiction  which  im- 


8  THE   MODERN   IDEA  OF   THE   STATE 

puted  to  the  state  a  double  personality;  one  of  these, 
the  "state-fisc,"  was  subject  to  the  law  which  was  bind- 
ing upon  all  other  persons,  while  the  other,  the  "state- 
sovereign,"  was  not.  Under  the  domination  of  the  con- 
stitutional system,  however,  where  king  and  parliament 
together  decreed  the  positive  law,  this  fiction  was  no 
longer  necessary  in  order  to  establish  the  validity  of 
common  law  even  for  the  sovereign.  In  fact,  the  posi- 
tive law,  as  a  product  of  both  the  king  and  the  popular 
representative  body,  was  thus  made  superior  to  the  sov- 
ereign in  the  original  sense  of  the  term.  And  consequently 
there  was  no  difficulty  in  recognizing  the  supremacy  of 
positive  law  even  in  the  field  of  public  law.  Under  the 
designation  of  the  legal  state  (Rechtsstaat) ,  this  suprem- 
acy of  the  positive  law  has  been  established  step  by 
step.  First  it  was  merely  a  limitation  of  the  sovereign 
authority;  then  it  became  the  demand  that  the  mere 
will  of  the  sovereign  be  replaced,  so  far  as  possible,  by 
law ;  and  finally  it  brought  about  the  unconditional  vic- 
tory of  the  law  with  the  exclusion  of  all  original  sover- 
eign authority.  Thus  a  complete  transformation  was 
accomplished.  The  sovereign  as  an  original  source  of 
authority  with  a  claim  to  unconditional  obedience  was 
superseded,  just  as  the  law  had  earlier  been  superseded 
as  an  independent  power  in  opposition  to  the  sovereign. 

III.  The  Significance  of  the  Modern  Idea  of  the  State. 
If  now  we  ask  what  great  idea  won  the  ascendancy  in 
the  process  just  described,  we  can  answer  that  a  spirit- 
ual power  has  taken  the  place  of  a  personal  authority. 
We  no  longer  live  under  the  dominion  of  persons,  either 


AUTHORITY  OF   STATE   AND   LAW  9 

natural  persons  or  fictitious  legal  persons,  but  under 
the  dominion  of  norms,  of  spiritual  forces.  In  this  is 
revealed  the  modern  idea  of  the  state.  The  old  founda- 
tion which  heretofore  had  mainly  supported  the  life  of 
the  community,  the  personal  authority  of  the  sov- 
ereign, has  been  compelled  to  give  place  (or  at  least 
is  more  and  more  giving  place)  to  another  foun- 
dation which  is  derived  from  the  spiritual  nature  of 
mankind.  This  spiritual  nature  is  the  source  from  which 
spring  real  forces  and  through  which  duties  are 
aroused  to  living  consciousness.  These  forces  rule  in  the 
strictest  sense  of  the  word.  Obedience  can  be  freely 
rendered  to  these  forces,  for  the  very  reason  that  they 
do  proceed  from  the  spiritual  nature  of  mankind.  The 
power  which  they  are  able  to  exert  has  its  roots  just  in 
this, — that  we  voluntarily  follow  their  guidance.  Such  a 
spiritual  force  permits  law  and  right  (Recht)  to  be  born 
and  continually  permits  them  to  be  born  anew.  That 
which  works  in  us  as  the  instinct,  the  feeling,  the  sense  of 
right,  and  which  lives  in  our  souls  as  an  original  force  of 
nature,  lies  at  the  basis  of  that  authority  which  com- 
pels us  to  live  in  a  society.  It  is  the  foundation  of  the 
rulership  which  is  inherent  in  the  idea  of  the  state. 
Hence  we  no  longer  perceive  the  state  as  localized  in  a 
sovereign,  but  we  find  it  wherever  we  perceive  the  power 
of  the  law  to  create  obligations.  What  is  now  in  actual 
practice  adorned  with  the  old  name  of  sovereign  is  a 
man  or  an  assemblage  of  men  upon  whom  the  law  has 
laid  a  task.  They  are  not,  therefore,  invested  with  a 
power  to  be  expressed  through  their  will  in  independ- 
ence of  the  law. 


10  THE   MODERN    IDEA   OF   THE   STATE 

Political  theory  has  not  taken  account  of  all  this ;  it 
has  persistently  clung  to  the  old  idea  of  sovereignty.  It 
cannot  fail  to  perceive  that  in  every  field,  even  in  that 
of  international  relations,  the  authority  of  law  is  grow- 
ing. But  it  shrinks  from  making  a  change  of  principle 
by  abandoning  the  idea  of  personal  sovereignty,  trac- 
ing the  power  of  the  state  to  the  authority  of  law,  and 
thus  recognizing  the  fact  of  the  sovereignty  of  law.  It 
is  indeed  difficult  for  it  to  free  itself  from  the  concep- 
tion of  a  personal  power  which  is  supported  by  a  tra- 
dition of  centuries  and  from  a  terminology  adapted  to 
this  conception.  So  we  have  those  juristic  fictions 
which,  while  they  recognize  the  predominant  power  of 
the  law,  still  seek  to  save  the  idea  of  personal  sover- 
eignty. We  are  familiar  with  such  fictions  as  those  of 
Jellinek,  which  assume  a  "self-imposed  obligation"  of 
the  sovereign  in  order  to  maintain  his  subjection  to  law. 
We  are  familiar  with  the  exaggeration  of  power  which 
is  attributed  to  the  king  in  words,  while  at  the  same 
time  he  is  bound  on  all  sides  by  law  in  the  exercise  of 
this  power.  We  are  familiar  with  the  sophism  of  the 
distinction  between  power  in  and  of  itself  and  the  exer- 
cise of  power.  Thus  juristic  dialectic  continues  to  be 
cultivated,  while  political  practice  is  already  revealing 
to  us  the  effective  truth  of  an  entirely  different  idea.  We 
must  now  turn  our  attention,  therefore,  to  this  modern 
idea  of  the  state,  which  is  absolutely  opposed  to  the  idea 
of  sovereignty,  with  its  postulate  of  an  authority  stand- 
ing outside  the  law.  Thus  we  shall  see  clearly  that  more 
and  more  political  communities  are  ruled  not  by  exter- 
nal powers,  but  by  inner  spiritual  forces  dwelling  in  men 


AUTHORITY  OF   STATE   AND   LAW  11 

and  working  out  from  them.  Everywhere,  in  every 
field  of  social  life,  appears  the  new  ruler,  law,  with  the 
full  certainty  that  sometime  there  will  fall  to  his  lot 
over  the  entire  globe  that  unlimited  and  undivided  rul- 
ership  which  the  best  of  our  race  have  at  all  times 
longingly  desired. 


CHAPTER  II 

THE    AUTHORITY    OF    THE    SOVEREIGN    AND    THE 
AUTHORITY  OF   THE    LAW    IN    HISTORY 

I.  The  State  Originally  a  Community  founded  on  Law. 
Sociological  and  historical  investigations  have  shown 
that  the  reciprocal  interdependence  which  has  existed 
between  men  from  the  earliest  times  has  caused  them 
to  live  in  organizations  which  were  in  no  way  imposed 
upon  them  from  the  outside,  that  is,  by  a  sovereign, 
but  which  arose  from  instinctive  feelings,  though  these 
feelings  were  clearly  differentiated  only  at  a  later  stage. 
This  is  the  original  type  of  community,  in  which  duties 
are  accepted  without  owing  their  sanction  to  a  sov- 
ereign. 

II.  The  Rise  of  the  Authority  of  the  Sovereign.  A  sov- 
ereign first  appears  when  the  tribe,  presumably  for  mil- 
itary reasons,  accepts  a  chief  and  renders  him  obedience. 
In  the  beginning  this  chief  derives  his  rights  from 
the  organization  of  the  community.  His  powers  there- 
fore have  their  origin  in  the  same  authority  which  gov- 
erns the  reciprocal  relations  between  the  members  of 
the  community,  viz.,  the  law.  If,  then,  the  modern  theo- 
ry of  the  state  recognizes  only  the  authority  of  the  law  as 
binding,  and  no  longer  admits  an  independent  and  origi- 
nal authority  in  the  sovereign,  this  is  merely  a  return  to 


AUTHORITY  IN  HISTORY  13 

the  primitive  relation  between  the  chief  of  the  com- 
munity and  the  community  itself.  At  least  this  is  true 
in  so  far  as  the  authority  of  the  chief  at  that  time 
sprang  from  the  organization  of  the  community  and 
the  authority  of  this  organization  was  recognized  as 
the  sole  source  of  rulership. 

The  original  relation  of  the  prince  to  the  community, 
however,  could  not  endure.  This  would  have  been  pos- 
sible only  in  case  an  organized  means  of  law-making 
had  continued  to  exist,  but  it  was  precisely  this  which 
was  interrupted  by  the  disappearance  of  the  popular 
assembly  or  representative  body  which  provided  for 
it.  It  is  indeed  true  that  there  appeared  at  times  in  the 
organization  of  the  state  an  assembly  of  estates,  but  its 
function  was  not  the  making  of  law  but  more  especially 
the  representation  of  interests.  Its  origin  and  raison 
d'etre  are  to  be  found  in  the  limitation  of  princely  pow- 
er, in  the  protection  of  the  rights  and  privileges  of 
the  estates.  This  disappearance  of  a  popular  organ  of 
legislation  made  it  impossible  for  the  community  to 
preserve  a  connection  between  its  own  inherent  legal 
order  and  the  authority  of  the  chief,  such  as  might  have 
kept  alive  the  notion  that  this  authority  was  an  out- 
growth of  the  communal  organization. 

Moreover,  since  the  chief  became  a  great  landowner 
and  also  made  the  army  and  the  official  class  subserv- 
ient to  him,  there  fell  to  him  a  vast  social  power  to  be 
organized  for  his  own  purposes.  Because  of  the  growth 
of  this  power,  and  also  because  the  position  of  chief  be- 
came hereditary,  there  arose  an  actual  personal  author- 
ity so  extensive  that  it  was  able  to  make  itself  inde- 


14  THE   MODERN   IDEA  OF  THE   STATE 

pendent  of  every  other  power,  even  of  that  belonging 
to  the  legal  order  of  the  people ;  and  in  fact  it  did  make 
itself  thus  independent.  When  this  happened,  the  com- 
munity was  ruled  by  two  different  authorities,  neither 
of  which  could  be  derived  from  the  other,  the  primitive 
authority  of  the  law  and  the  new  authority  which  pro- 
claimed itself  as  that  of  the  sovereign.  Frequently  the 
territories  controlled  by  these  two  authorities  did  not 
coincide.  In  Germany  several  independent  sovereigns 
might  be  found  within  territories  where  one  and  the 
same  law  was  in  force.  In  France  the  opposite  condi- 
tion existed,  since  one  large  territory  under  a  single 
sovereignty  was  divided  into  several  distinct  jurisdic- 
tions each  with  its  own  court  (parlement). 

With  the  appearance  of  a  sovereign  authority  dis- 
tinct from  the  authority  of  the  law,  there  arose  the 
need  of  giving  it  a  legal  character,  though  its  basis  was 
extra-legal.  Down  to  our  own  day  political  theory  has 
assumed  this  task  and  has  made  the  authority  of  the 
sovereign  its  central  point,  to  the  almost  complete  neg- 
lect of  the  authority  of  the  law.  Indeed  it  may  be  said 
that  since  the  Middle  Ages  political  theory  has  been 
nothing  more  than  a  theory  of  sovereignty  and  that  the 
theory  of  the  state  has  devoted  itself  to  the  elaboration 
of  the  organization  of  powers  involved  in  sovereignty. 

III.  Ancient  Political  Theory  as  a  Theory  of  the  Legal 
Order  of  the  Community.  It  was  otherwise  in  ancient 
Greek  times.  Then  there  was  far  more  emphasis  upon 
the  organization  of  the  people,  or  the  legal  order  of  the 
community,  than  upon  the  organization  of  powers.  One 


AUTHORITY  IN   HISTORY  15 

can  scarcely  find  in  Greek  political  theory  the  notion  of 
a  sovereign  invested  with  an  inherent,  independent 
authority.  Plato's  Republic  attempts  to  sketch  an  or- 
ganization of  classes  in  which  justice  can  be  realized.  In 
his  Laws  Plato  regards  not  persons  but  only  Laws,  i.  e., 
an  impersonal  authority,  as  the  ruler.  In  Aristotle  the 
organization  of  powers  receives  more  attention.  The 
classification  of  powers  as  monarchies,  aristocracies, 
and  democracies  (timocracies)  is  to  be  traced  to  him. 
But  this  classification  possesses  no  theoretical  signifi- 
cance and  does  not  indicate  any  distinction  between 
law  and  sovereignty.  It  is  merely  a  form  of  organiza- 
tion in  which  the  self-directing  life  of  the  community, 
as  a  condition  of  the  moral  development  of  the  individ- 
ual and  the  race,  expresses  itself.  The  end  is  ethical, 
as  is  the  case  also  in  the  Platonic  theory  of  the  state. 
If,  therefore,  one  is  to  speak  of  the  Greek  idea  of  the 
state,  so  far  as  the  writings  of  Plato  and  Aristotle  are 
concerned,  this  idea  implies  not  a  relation  between  sov- 
ereign and  people,  but  rather  one  between  individual 
and  community.  Thus  the  emphasis  is  placed  upon  the 
natural  inclusion  of  the  individual  in  a  single  encom- 
passing community.  Consequently  subordination  to  an 
external  authority,  such  as  later  found  expression  in 
the  monarchical  state,  has  no  place  here  and  the  state 
as  a  relation  of  sovereign  to  subjects  is  never  thought 
of.  In  the  Stoic  philosophy  again  the  idea  of  the  com- 
munity appears,  but  now  it  is  extended  to  the  whole  of 
mankind;  an  order  based  on  natural  law  determines 
the  relations  between  the  members  of  this  community, 
while  political  organization  is  entirely  omitted. 


16  THE    MODERN   IDEA  OF  THE  STATE 

IV.  The  Political  Theory  of  the  Middle  Ages  as  a  The- 
ory of  Sovereignty.  It  is  in  the  Middle  Ages  that  we  first 
find  a  conception  of  the  state  characterized  by  the  op- 
position between  sovereign  and  subject,  after  a  sov- 
ereign authority  outside  the  organization  of  the  com- 
munity had  in  fact  developed.  In  the  Middle  Ages  at- 
tention was  directed  wholly  to  political  organization 
and  the  community  with  its  inherent  legal  order  was 
entirely  lost  sight  of.  The  strife  of  sovereignties  re- 
sounds through  political  theory;  emperor  and  pope, 
the  personifications  of  secular  and  spiritual  authority, 
contend  for  mastery.  Political  theory  interests  itself 
exclusively  in  political  organization;  the  community 
and  its  internal  legal  order  are  scarcely  mentioned.  A 
basis  for  secular  sovereignty  independent  of  the  Church 
is  eagerly  sought,  until  the  fact  of  the  state's  independ- 
ence becomes  so  overwhelmingly  evident  that  it  is  no 
longer  important  to  maintain  its  claims  against  the 
Church.  Then  the  significance  of  sovereignty  as  op- 
posed to  the  subject  people  is  made  the  object  of  investi- 
gation. It  is  worthy  of  note,  however,  that  in  the  Mid- 
dle Ages,  in  so  far  as  Greek  philosophy  again  gains 
ground,  the  community,  the  social  group,  comes  to  be 
considered  anew.  This  is  shown  chiefly  in  Thomas 
Aquinas,  who,  along  with  the  Aristotelian  philosophy, 
revived  also  the  Greek  idea  of  the  state,  which  derived 
rulership  from  the  natural  subordination  of  the  individ- 
ual to  the  community.  However,  he  makes  no  effort  to 
discuss  from  this  point  of  view  the  relation  between  the 
sovereign  authority  of  his  time  and  the  legal  organiza- 
tion of  the  people.  In  fact,  there  was  no  occasion  for 


AUTHORITY   IN   HISTORY  17 

him  to  do  so,  since  his  own  political  theory  was  prima- 
rily directed  to  showing  that  secular  authority  exists 
to  further  the  purposes  of  the  Church. 

V.  The  Meaning  of  the  Contract  with  the  Sovereign  and 
of  the  Social  Contract  under  A  bsolutism.  After  the  Middle 
Ages,  when  the  independence  of  the  sovereign  as 
against  the  Church  had  become  an  established  fact,  sov- 
ereignty remained  the  chief  point  of  interest,  but  in 
the  face  of  a  growing  absolutism  it  was  now  considered 
with  a  view  to  defining  the  limits  of  the  sovereign's 
power.  For  this  purpose  political  theory  adopted  the 
well-known  conception  of  a  contract  with  the  sovereign 
which  had  already  been  used  to  secure  to  the  secular 
power  a  basis  of  its  own  as  against  the  Church.  This 
contract  proceeds  from  the  community,  from  the  uni- 
versitas  populi.  The  community,  represented  by  the 
magnates  of  the  land,  as  one  party  to  the  contract,  is 
conceived  to  grant  or  convey  sovereign  authority  to 
the  prince  under  definite  conditions.  So  long  as  this 
was  merely  a  way  of  maintaining  a  special  basis  for 
secular  sovereignty  against  the  divine  origin  of  the 
Church,  there  was  no  further  investigation  of  the  author- 
ity inherent  in  the  community.  But  when  the  contract 
with  the  sovereign  came  to  be  considered  as  a  means 
of  limiting  his  power  over  the  people,  the  next  step  was 
naturally  to  inquire  about  the  source  of  that  authority, 
which  must  lie  in  the  community,  inasmuch  as  the  com- 
munity had  granted  it.  It  is  generally  agreed  that  Alt- 
husius  was  the  first  to  investigate  this  question.  x) 

*)  Politico,  methodice  digesta,  1610. 

The  modern   idea  of   the  State.  2 


18       THE  MODERN  IDEA  OF  THE  STATE 

Now  it  is  surprising  to  observe  that  even  Althnsius 
assumes  that  the  sovereign  authority  is  established 
by  a  contract  in  which  the  community  subjects  itself 
to  this  authority.  There  is  in  reality  no  place  for  such 
a  contract  in  his  system  because  the  so-called  social 
contract,  which  explained  the  origin  of  the  community, 
provided  also  for  the  various  organs  for  maintaining 
its  interests.  The  organization  of  sovereignty,  as  well 
as  the  legal  relations  between  the  members  of  the  com- 
munity, is  a  product  of  the  social  contract.  The  con- 
tract calls  into  being  a  community  fully  equipped  with 
all  the  necessary  organs.  Consequently  Althusius  is  the 
first  writer  (his  contract  with  the  sovereign  being  left 
out  of  account)  who,  strictly  considered,  does  not  base 
the  authority  of  the  sovereign  and  the  authority  of 
law  on  different  foundations  but  considers  the  former 
as  an  element  in  the  organization  of  the  community. 
This  sovereignty,  with  the  organization  of  powers 
which  it  implies,  is  not  independent  of  the  law  and 
outside  it  but  rather  is  rooted  in  the  law.  Nevertheless, 
as  was  observed,  we  still  find  in  Althusius  a  contract 
with  the  sovereign,  although  the  community  is  fully 
equipped  to  perform  all  the  functions  of  the  sover- 
eign. Through  the  agency  of  its  highest  organs,  the 
Ephors,  the  organized  people  enter  into  a  contract  with 
the  sovereign  by  which  a  summus  magistratus  is  set  up 
and  endowed  with  a  limited  sovereign  authority,  with 
a  provision  for  his  recall  in  case  his  power  is  misused. 
The  reason  for  this  contract,  which  is  entirely  super- 
fluous so  far  as  Althusius's  theory  is  concerned,  is  to  be 
found  in  the  organization  of  the  German  Empire, 


AUTHORITY   IN   HISTORY  19 

which  was  obviously  his  model  and  in  which  the  em- 
peror so  nearly  played  the  part  of  his  chief  magistrate. 
So  far  as  the  content  of  his  social  contract  is  concerned, 
this  contract  with  the  sovereign  is  entirely  unnecessary, 
since  every  thing  would  go  on  just  as  well  without  it  as 
with  it,  and  without  the  chief  magistrate,  as  with  him. 
Thus  if  Althusius  had  been  more  clearly  conscious  of 
the  importance  attaching  to  the  social  contract  in  his 
political  theory,  he  might  be  called  the  father  of  the 
theory  of  the  sovereignty  of  law,  though  with  the  re- 
servation that  the  fiction  of  a  social  contract  is  no 
longer  required  as  a  basis  for  this  sovereignty. 

VI.  The  Relation  between  the  Sovereign  Authority  and 
the  Organization  of  the  Community  in  Grotius  and  Others. 
In  Grotius  also  we  find  that  there  is  a  relation  between 
the  sovereign  authority  and  the  organization  of  the 
community,  but  the  relation  is  much  less  important 
than  in  Althusius. 

Grotius  starts  irom  the  following  definition:  "The 
community  is  a  perfect  coming  together  of  free  men, 
associated  for  the  sake  of  enjoying  the  advantages  of 
law  and  for  the  common  utility."  x)  The  point  to  be 
emphasized  in  this  definition  is  the  "perfect  coming 
together,"  by  which  is  meant  such  a  relationship  that 
an  ultimate  or  sovereign  authority  (summa  potestas) 
arises  from  it,  or  at  least  is  contained  in  it.  So  far  Gro- 
tius and  Althusius  follow  the  same  path.  It  is  possible, 
however,  for  this  sovereign  authority  to  be  divorced 

*)  De  jure  belli  ac  pads,  Lib.  I,  Cap.  I,  Sect,  xiv,  1.  Est  autem  civitas 
coetus  perfectus  liberorum  hominum,  juris  fruendi  et  communis  util- 
jtatis  causa  sociatus. 


20  THE   MODERN   IDEA  OF  THE   STATE 

entirely  from  the  community,  either  by  alienation,  if 
the  people  renounce  it  in  lavor  of  another  (the  prince), 
or  if  it  is  taken  by  conquest,  in  which  case  the  prince 
possesses  it  as  a  patrimonial  estate.  *)  The  recognition 
of  the  community  as  the  source  of  ultimate  authority 
is  important  only  if  the  prince's  power  is  lost  or  if  the 
reigning  family  dies  out.  The  sovereign  authority  then 
reverts  to  the  people  which  again  becomes  sui  juris. 
This  connection  between  the  community  and  the  sov- 
ereign authority,  together  with  the  possibility  that  the 
latter  may  be  possessed  by  some  one  other  than  the 
people,  leads  Grotius  to  say  that  this  authority  resides 
in  a  twofold  subject,  the  people  and  the  prince.  The 
people  he  calls  the  common  subject,  the  prince  the 
special  subject.  The  reason  why  he  speaks  of  a  common 
subject  in  connection  with  the  people  he  explains  as 
follows:  "For  the  authority  which  is  in  the  king  as  the 
head,  is  in  the  people  as  the  whole  body,  of  which  the 
head  is  a  part."  2)  In  the  last  clause,  the  notion  is  again 
expressed  that  the  power  of  the  prince  is  part  of  the 
organization  of  the  community. 

In  the  works  of  other  writers  this  relation  is  ex- 
pressed by  the  opposition  between  the  "real  sovereignty" 
and  "personal  sovereignty."  This  does  not  mean,  as 
Gierke  supposes,  that  a  twofold  sovereign  is  assumed. 
The  sovereign  authority  lies  either  in  the  people  (the 
community  or  civitas)  or  in  the  prince.  But  there  is  a 
feeling  that  some  connection  exists  between  the  people 
and  the  sovereign  authority,  even  when  the  latter  is 


»)  Ibid.,  Lib.  I,  Cap.  Ill,  Sect,  xi,  1. 

2)  Ibid.,  Lib.  II,  Cap.  IX,  Sect,  vm,  l;  Cf.  Lib.  I,  Cap.  Ill,  Sect.  vii. 


AUTHORITY   IN   HISTORY  21 

possessed  by  the  prince,  since  both  have  a  share  in  the 
"sovereignty,"  as  the  terminology  itself  indicates.  The 
purpose  of  this  terminology  was  to  distinguish  sover- 
eign and  community  and  yet  to  make  clear  the  con- 
nection between  them.  Grotius,  however,  got  no  far- 
ther than  an  insight  into  the  fact  that  sovereignty, 
ultimate  authority,  arises  from  the  life  of  the  commu- 
nity. That  it  arises  from  the  community  in  the  same 
way  in  which  law  does,  that  the  organization  of  powers 
is  essentially  an  organization  by  law,  is  less  clearly 
perceived  by  Grotius  than  by  Althusius.  For  Grotius, 
like  his  predecessors  and  many  of  his  followers,  starts 
from  a  personal  authority  and  a  personal  right  to 
authority  (gained  by  conquest  or  alienation).  Conse- 
quently, to  establish  a  connection  between  the  com- 
munity and  the  prince  they  were  forced  to  fall  back 
upon  such  artificial  distinctions  as  the  "common  sub- 
ject" and  the  "special  subject,"  or  "real  sovereignty" 
and  "personal  sovereignty." 

In  opposition  to  Althusius,  who  regarded  the  rela- 
tion between  sovereign  authority  and  the  community 
as  indissoluble,  Grotius  recognizes  the  possibility  of  a 
separation,  since  the  prince  may  establish  his  power 
by  conquest  and  exercise  it  as  in  a  patrimonial  estate. 
In  the  history  of  political  theory  the  gulf  between  the 
state  or  sovereign  and  the  community  grew  ever  wider, 
and  the  importance  of  the  community  and  its  organi- 
zation for  the  explanation  of  sovereignty  correspond- 
ingly diminished.  The  state  is  regarded  only  as  a  sov- 
ereign authority,  a  manifestation  of  power. 


22  THE   MODERN   IDEA  OF  THE   STATE 

VII.  Political  Theory  as  Exclusively  a  Theory  of  the 
Sovereign  Authority.  The  first  writer  who  regards  the 
state  as  exclusively  an  organization  of  powers  is  Hobbes. 
For  him  the  sovereign  is  not  a  product  ol  the  com- 
munity ;  on  the  contrary,  the  community  is  a  product 
of  sovereign  authority.  Life  in  a  state  of  nature  has  so 
great  disadvantages  for  man  that  under  the  guidance 
of  reason  he  unites  with  others  to  set  up  an  irresistible 
authority  to  guarantee  law,  order,  and  security.  Accord- 
ing to  Hobbes  the  social  contract  does  not  create  a 
community  (civitas)  which,  after  it  is  in   existence, 
subordinates  itself  to  the  authority  and  power  of  a 
prince  or  king  by  a  contract  which  institutes  a  sov- 
ereign. The  social  contract  itself  directly  establishes 
this  supreme  authority.  Hobbes  explains  this  by  a 
clever  device  according  to  which  the  people  agree 
among  themselves  that  each  shall  give  up  all  his  rights 
to  a  single  person  or  assembly  on  condition  that  the 
others  shall  do  the  same.  "I  authorize  and  give  up  my 
right  of  governing  myself,  to  this  man,  or  to  this  assem- 
bly of  men,  on  this  condition,  that  thou  give  up  thy 
right  to  him,  and  authorize  all  his  actions  in  like  man- 
ner." x)  When  this  is  done,  the  state  comes  into  exist- 
ence.  "This  is  the  generation  of  that  great  Leviathan, 
or  rather,  to  speak  more  reverently,  of  that  mortal  god, 
to  which  we  owe  under  the  immortal  God,  our  peace  and 
defence."  2) 

In  this  case,  then,  we  have  to  do  with  a  contract  in 


*)  Leviathan,  Ch.  XVII;  English  Works,  Ed.  Molesworth,  Vol.  III. 
p.  158. 
*)  Ibid. 


AUTHORITY   IN   HISTORY  23 

favor  of  a  third  person.  This  third  person,  the  king, 
receives  nothing  from  the  community,  but  on  the  con- 
trary gets  his  rights  and  powers  from  each  individual ; 
he  acquires  these  as  the  result  of  an  agreement  to  this 
effect  entered  into  by  the  individuals  among  them- 
selves. He  himself  concludes  no  agreement  with  the 
individuals  and  has,  therefore,  no  obligations  toward 
them.  The  prince  is  not  placed  over  against  a  commu- 
nity but  over  against  individuals  only.  Thus  for  Hobbes 
the  aphorism  that  the  prince  is  "greater  than  the 
parts  but  less  than  the  whole"  has  no  meaning.  If  one 
speaks  in  this  connection  of  a  community  at  all,  it  can 
be  only  that  which  is  produced  by  the  establishment  of 
the  state.  Hence  Hobbes  states  a  new  conception  of 
the  community,  that  of  a  community  produced  by  sub- 
ordination to  a  single  power;  heretofore  the  point  of 
departure  had  been  the  community,  that  is,  an  associa- 
tion of  the  people  produced  by  law.  In  other  words,  the 
rise  of  the  state  occasions  the  rise  of  the  community, 
but  only  in  the  sense  that  a  portion  of  mankind  is 
thereby  brought  into  subjection  to  the  same  authority. 
Essentially  the  same  idea  is  still  current  in  the  lit- 
erature of  German  political  theory.  It  probably  oc- 
curred to  Hobbes  as  a  result  of  his  residence  in  France 
where  he  was  associated  with  the  circle  of  the  exiled 
Stuarts  and  where  absolute  monarchy  had  reached 
its  highest  point.  In  the  case  of  France  one  might  cor- 
rectly hold  at  that  time  that  the  people,  high  and  low, 
formed  a  unity  only  because  of  their  complete  subjec- 
tion to  the  power  of  the  king.  France,  with  its  separa- 
tion into  classes  and  its  disjointed  systems  of  local  law, 


24       THE  MODERN  IDEA  OF  THE  STATE 

was  in  no  sense  of  the  word  a  legal  community.  Conse- 
quently the  notion  of  a  community,  as  distinguished 
from  the  state,  could  scarcely  make  its  way. 

VIII.  The  Relation  between  Sovereign  Authority  and 
the  Organization  of  the  Community  in  England.  The  situ- 
ation was  different  in  England,  where  the  existence  of 
a  common  law  pointed  to  an  association  of  the  people 
as  distinguished  from  the  political  organization.  Conse- 
quently Locke,  who  composed  his  Two  Treatises  of 
Government  with  the  English  situation  in  view,  takes 
the  association  of  the  people  as  his  point  of  departure. 
In  its  original  condition,  under  the  reign  merely  of 
the   law   of   nature,  this  association  has  as  its  basis 
an  incomplete  organization,  since  many  of  its  details 
are  doubtful  and  there  is  no  guarantee  for  its  mainte- 
nance. This  defect  is  removed  by  the  establishment  of 
a  sovereign  and  consequently  the  task  of  the  sovereign 
is  a  priori  the  realization  of  the  law  of  nature.  For  Locke, 
therefore,  the  sovereign  authority  is  an  outgrowth  of 
the  community,  but  like  his  predecessors  he  fails  to 
show  that  the  organization  of  powers  has  its  roots  in 
the  legal  order  of  this  community.  It  has  its  own  inde- 
pendent basis,  viz.,  the  social  contract.  The  state  and 
the  community  are  connected  only  in  the  sense  that 
the  former  is  a  necessary  complement  of  the  latter, 
but  not  in  the  sense  that  political  authority  is  an  ele- 
ment of  the  legal  order  which  grows  out  of  the  com- 
munity and  thus  has  the  same  basis  as  the  law  which 
rules  in  the  community. 


AUTHORITY  IN   HISTORY  25 

IX.  The  German  Philosophy  of  the  State  under  the 
Ancien  Regime.  The  German  philosophy  of  the  state 
(Pufendorf,  Thomasius,  and  Wolff)  presents  no  new 
points  of  view  for  our  purpose.  How  could  one  expect 
to  find  in  it  a  derivation  of  the  sovereign  authority 
from  that  authority  which  upholds  the  organization  of 
the  community?  The  more  than  three  hundred  sov- 
ereigns under  whom  the  German  people  groaned  strove 
to  make  themselves  independent  of  the  Imperial  power 
in  order  that  they  might  establish  themselves  as  sov- 
ereign over  their  subjects.  A  political  theory  such  as 
that  of  Althusius  stood  in  only  too  patent  contradic- 
tion to  the  temper  of  the  times.  Hence  it  was  that  his 
work  was  forgotten  until  it  was  rediscovered  by  Gierke. 
German  philosophy,  both  before  and  after  Althusius, 
conceived  its  task  as  the  establishment  of  sovereign 
authority  independent  of  law,  and  it  performed  its  task 
in  the  traditional  fashion  by  constructing  contracts 
whose  binding  force  was  established  by  appeal  to  the 
law  of  nature. 

X.  Montesquieu's  Separation  of  Powers:  A  Product  of 
Political  Theory  as  a  Theory  of  Sovereign  Authority.  The 
notion  of  the  English  constitutional  system  held  by 
Montesquieu  fitted  admirably  with  the  generally  ac- 
cepted theory  of  a  sovereign  authority  resting  upon  an 
independent  foundation.  It  is  entirely  clear  why  this 
system  seemed  to  him  to  contain  a  separation  of  powers, 
for  it  was  the  general  assumption  of  political  theory  that 
the  state  is  nothing  but  a  manifestation  of  force,  a 
condition  in  which  the  people  are  subject  to  a  sov- 


26  THE   MODERN    IDEA   OF   THE   STATE 

ereign.  The  history  of  England  had  shown  that  in  con- 
sequence the  state  involved  a  danger  to  freedom,  which 
had  resulted  there  in  the  placing  of  the  king  under 
"legal  obligation"  and  had  brought  about  a  separa- 
tion between  the  executive  and  legislative  powers. 
When  Montesquieu  developed  this  practical  safeguard 
against  the  abuse  of  power  into  a  system,  he  declared 
that  the  wisdom  of  the  English  Constitution  lay  in  the 
following  discovery:  "To  prevent  this  abuse,  it  is  nec- 
essary from  the  very  nature  of  things  that  power 
should  be  a  check  to  power."  x) 

Hence  the  sovereign  authority  must  be  broken  in 
pieces.  The  need  for  independently  functioning  legis- 
lative, executive,  and  judicial  powers  is  involved  in  the 
idea  of  a  sovereign  authority  standing  outside  the  law, 
since  the  danger  to  freedom  in  such  a  situation  must  be 
guarded  against.  It  is  therefore  intelligible  that  the  theo- 
ry of  the  separation  of  powers  should  have  been  counted 
a  fundamental  doctrine  of  constitutional  law.  And  since 
it  is  customary  even  yet  in  political  theory  to  describe 
the  state  as  an  original  manifestation  of  power,  this 
theory  cannot  free  itself  from  the  trias  politico,,  though 
this  trinity  of  powers  is  incompatible  with  the  assumed 
unity  of  the  state's  authority. 

As  soon  as  the  existence  of  a  distinct  sovereign  au- 
thority is  denied  and  the  law  is  accepted  as  the  only 
governing  power,  the  power  exercised  in  the  name  of 
the  state  is  recognized  as  a  competence,  arising  from 
the  law  and  operating  according  to  legal  rules,  to  legis- 
late, to  render  judgments,  and  to  punish.  It  is  the  law, 

»)  De  I'esprit  des  lois,  Liv.  XI,  Ch.  IV. 


AUTHORITY  IN   HISTORY  27 

moreover,  which  determines  whether  the  organs  de- 
signed to  fulfil  these  functions  shall  be  more  or  less  inde- 
pendent of  each  other.  It  may  be  that  the  independence 
of  these  organs  coincides  with  the  primitive  functions 
of  legislation,  administration,  and  judicature,  but  it 
is  not  necessary  for  the  organization  of  the  state  to 
follow  these  lines  and,  in  fact,  it  has  long  since  ceased 
in  practice  to  do  so.  However,  the  need  for  this  separa- 
tion remains  if  the  state  is  a  Leviathan,  or  monster, 
which  can  thereby  be  rendered  in  some  degree  harm- 
less. The  famous  doctrine  of  the  trias  politico,  is  there- 
fore inseparably  connected  with  a  particular  theory  of 
the  state.  If  on  the  contrary  one  starts  from  the  law, 
one  sees  at  once  that  freedom  does  not  need  to  be  de- 
fended against  the  law  as  a  governing  power.  One  may 
search  for  means  to  insure  the  most  satisfactory  legis- 
lation possible,  but  the  law  established  in  this  way  is 
never  a  threatening  authority,  but  rather  a  power 
whose  validity  depends  upon  its  ethical  character  and 
which  therefore  can  never  be  in  principle  injurious  to 
freedom. 

XI.  The  Theory  of  State  Sovereignty  in  the  Eighteenth 
Century.  This  line  of  reasoning  assumes  that  the  law  as 
such  carries  its  own  validity  with  it  and  that  it 
alone  is  to  be  regarded  as  a  really  governing  power.  But 
in  the  eighteenth  century  men  were  still  far  from  this 
conclusion,  at  least  on  the  Continent.  For  it  was  in 
just  this  period  that  the  notion  gained  currency  that 
the  law,  in  respect  to  its  validity  if  not  its  content,  is 
the  creation  of  the  sovereign,  a  view  which  imputes  to 


28  THE   MODERN    IDEA   OF  THE   STATE 

the  state  that  sovereign  character  in  which  even  yet 
German  political  theory  seeks  to  find  its  essence.  In 
the  age  of  enlightened  despotism  Germany  put  this 
notion  into  practice  and  law  came  to  be  regarded  as 
the  product  of  the  state,  the  will  of  the  sovereign,  even 
though  the  sovereign  is  under  an  obligation  to  follow 
the  prescriptions  of  the  law  of  nature  or  reason.  No- 
where, however,  was  this  view  so  fully  developed  as  in 
France  at  the  time  of  the  Revolution,  where  the  depend- 
ence of  law  upon  the  state  was  erected  into  a  dogma 
by  means  of  the  theory  of  popular  sovereignty. 

XII.  Rousseau's  Popular  Sovereignty.  The  theory  of 
popular  sovereignty  as  held  by  Rousseau  differed  from 
the  theory  bearing  the  same  name  in  the  Middle  Ages 
and  later,  because  of  its  complete  identification  of  the 
state  with  the  community.  For  Rousseau  the  commu- 
nity (people)  is  the  state.  Previously  the  community 
and  the  state  had  been  set  over  against  each  other ;  the 
people,  as  a  community  or  universitas,  had  subordi- 
nated itself  to  the  ruler  by  apactum  subjectionis  and  had 
thus  constituted  the  state.  But  according  to  Rousseau 
the  community  (people)  is  an  "organized  body,  living 
and  like  the  body  of  a  man,"  endowed  with  sovereignty 
over  its  members.  The  origin  and  legal  basis  for  such  an 
association  he  sought,  like  his  predecessors,  in  the  social 
contract,  by  which  especially  the  sovereignty  of  the 
whole  over  its  members  was  legitimized.  With  this 
idea  of  a  community  organized  and  acting  as  a  person 
and  possessing  power  over  its  members  a  new  and 
fruitful  idea  was  brought  into  the  foreground  of  polit- 


AUTHORITY  IN  HISTORY  29 

ical  theory.  For  the  first  time  the  authority  of  an  im- 
personal power  is  posited.  Until  the  time  of  Rousseau 
it  was  impossible  to  conceive  of  any  authority  other 
than  a  personal  one  and  the  power  of  the  state  was 
regarded  as  a  right  to  command  inhering  in  specific 
persons.  This  personal  authority  Rousseau  abandoned, 
for  he  assumed  that  the  power  of  the  state  is  nothing 
except  the  power  of  the  community  over  its  own  mem- 
bers and  hence  an  impersonal  rulership  which  is  inalien- 
able. Thus  every  government  is  merely  a  "commis- 
sion du  peuple"  which  carries  out  a  mandate  revocable 
at  any  moment.  In  accordance  with  this  view  the  com- 
munity is  recognized  as  having  a  will,  the  general  will, 
in  the  production  of  which  the  members  indeed  have 
a  share  but  which  is  not  on  that  account  to  be  identi- 
fied with  the  will  of  all.  This  will  of  the  social  body  is 
the  positive  law.  In  positive  law  the  power  of  the  com- 
munity (people)  over  its  members  manifests  itself  and 
there  is  no  authority  higher  than  that  of  this  law  in 
which  the  will  of  the  people  is  expressed.  If  Rousseau's 
political  theory  had  been  regarded  only  in  the  light  of 
its  main  principles  and  had  not  been  criticised  exclu- 
sively with  reference  to  what  he  borrowed  from  earlier 
theories,  viz.,  the  explanation  of  the  community  and 
the  establishment  of  its  sovereignty  by  the  social  con- 
tract, there  might  have  been  seen  in  it,  what  it  doubt- 
less contains,  the  principle  of  the  modern  idea  of  the 
state.  This  idea  takes  as  its  starting  point,  in  order  to 
explain  the  authority  which  is  involved  in  the  notion 
of  the  state,  not  an  imaginary  sovereign  but  the  com- 
munity. When  one  recognizes  the  community  as  the 


30  THE   MODERN   IDEA  OF  THE   STATE 

central  fact,  one  arrives  naturally  at  the  basis  of  the 
state's  authority,  namely,  the  law.  For  the  community 
is  an  order  which  arises  from  the  law,  and  in  this  order 
are  rooted  the  structure,  the  functioning,  and  the  com- 
petence of  the  whole  organism  which  upholds  the  in- 
terests of  the  community.  As  will  be  shown  later,  it  is 
perhaps  inaccurate  to  call  this  complex  of  interests 
"the  state." 

In  actual  practice  the  old  notion  of  sovereignty,  how- 
ever, still  prevailed  but  was  extended  to  the  people; 
the  view  is  still  held  that  law  is  the  will  of  the  sovereign, 
which  now  means  the  will  of  the  people.  Consequently 
the  theory  of  the  autonomous  character  of  legal  author- 
ity could  not  take  root  and  legislation  was  regarded  as 
the  only  source  of  law.  German  political  theory  has 
been  a  blind  follower  of  this  practice,  except  in  one 
respect,  viz.,  that  it  substituted  the  concept  of  the 
state  for  the  people,  conceived  the  state  as  sovereignty 
or  the  manifestation  of  power,  and  regarded  law  as  the 
will  of  the  state,  which  makes  law  dependent  upon  pow- 
er. Consequently  Rousseau's  words  hold  good  of  it 
also:  "If  force  constitutes  right,  the  effect  changes  with 
the  cause,  and  any  force  which  overcomes  the  first  suc- 
ceeds to  its  rights."  *)  This  political  theory  does  not 
trouble  itself  about  the  question,  "What  can  render  it 
[political  subjection]  legitimate?"  2) 

XIII.  The  Rise  of  the  Modern  Idea  of  the  State  under  the 
Constitutional  System.  What  Rousseau's  political  the- 
ory could  not  accomplish,  because  it  confused  the  au- 

>)  Contrat  social,  Liv.  I,  Ch.  III. 
*)  Ibid.,  Ch.  I. 


AUTHORITY  IN   HISTORY  31 

thority  of  the  law  with  that  of  the  sovereign  and  thus 
united  ideas  both  old  and  new,  was  brought  about  by 
the  actual  practice  of  the  constitutional  system.  In  op- 
position to  the  old  historical  sovereign  authority  embod- 
ied in  the  king,  it  sets  up  an  organ  elected  by  and 
from  the  people,  the  representative  assembly,  thus 
bringing  to  light  an  authority  other  than  that  of  the 
sovereign.  If  one  still  clings  to  the  old  terminology,  the 
people  (universitas ,  community)  and  the  sovereign  are 
still  opposed,  but  no  longer  in  the  momentary  act  of 
establishing  or  limiting  the  rights  of  the  sovereign  by 
means  of  a  contract ;  they  are  continuously  opposed  as 
permanent  elements  of  the  constitution.  The  king  also 
is  now  viewed  as  an  element  of  the  constitution.  Both 
practically  and  theoretically  the  importance  of  the  new 
organ,  as  opposed  to  the  old  organ  of  sovereignty,  was 
in  the  beginning  uncertain.  Should  it  be  assumed,  as 
von  Mohl  did,  that  decisive  power  remained  with  the 
old  organ  of  sovereignty  and  that  the  popular  assembly 
was  to  be  regarded  as  an  organ  of  the  people,  a  source 
of  information  for  the  sovereign,  but  not  an  organ  of 
the  state  ?  This  notion  very  soon  proved  itself  untena- 
ble, when  the  approval  of  the  popular  assembly  was 
required  for  many  acts  of  the  sovereign.  What  other 
authority,  not  already  belonging  to  the  sovereign,  was 
thus  added  to  his  decrees  ?  Or  is  the  sovereign  author- 
ity to  be  regarded  as  divided  between  the  king  and 
the  popular  assembly  ?  This,  however,  does  not  explain 
why  it  is  precisely  an  organ  of  the  people  which  is  in- 
vested with  sovereign  authority.  Yet  this  calls  for  ex- 
planation, since  some  participation  of  a  popular  assem- 


32  THE   MODERN   IDEA  OF  THE   STATE 

bly  in  the  fulfillment  of  the  purposes  of  the  state  was 
considered  an  essential  part  of  the  constitutional 
system. 

The  development  of  the  constitutional  system  clari- 
fied all  these  questions.  At  first  this  system  takes  the 
form  of  an  application  of  the  doctrine  of  the  separa- 
tion of  powers,  since  among  the  tasks  allotted  to  the 
popular  assembly  is  that  of  limiting  the  authority  of 
the  sovereign  in  order  to  prevent  abuses.  This  limita- 
tion took  the  form  of  a  demand  for  legislative  control. 
The  word  legislation  (Gesetz)  implies  the  notion  of  co- 
operation on  the  part  of  the  popular  assembly.  What- 
ever requires  the  approval  of  the  popular  assembly  is 
called  legislation;  this  word  therefore  carries  a  formal 
meaning.  There  is  no  settled  opinion  and  no  settled 
practice  regarding  the  extent  of  the  co-operation  of  the 
popular  assembly,  or  regarding  what  is  and  what  is  not 
to  be  settled  by  legislation.  For  changes  in  private  law 
and  criminal  law  legislation  is  required ;  for  regulations 
which  relate  to  the  public  welfare  and  the  police,  on 
the  other  hand,  it  is  not  required.  In  a  revision  of  the 
constitution,  therefore,  occasion  is  taken  expressly  to 
extend  the  field  of  legislative  control  and  so  to  limit 
the  independent  action  of  the  sovereign  in  the  interest 
of  public  safety. 

In  proportion  as  legislative  regulations  increase,  the 
view  develops  that  legislation  is  the  basis  tor  the  sov- 
ereign's action  and  not  merely  a  limitation  upon  his 
natural  competence  as  a  sovereign.  With  the  appear- 
ance of  this  view  the  sovereign  loses  a  part  of  his  in- 
dependence, for,  in  so  far  as  he  needs  legislation  as  a 


AUTHORITY  IN  HISTORY  33 

support,  his  character  as  a  sovereign  has  been  lost. 
This  idea  is  fully  realized  in  what  is  known  as  the  "legal 
state"  (Rechtsstaat) .  It  logically  implies  that  the  co- 
operation of  the  popular  assembly  is  a  necessary  condi- 
tion without  which  the  will  of  the  sovereign  cannot 
attain  the  standing  of  a  rule  of  law.  In  this  way,  there- 
fore, the  word  legislation,  as  determining  the  compe- 
tence of  the  popular  assembly,  gains  a  material  mean- 
ing. In  assigning  legislative  authority  to  the  king  and 
the  popular  assembly  it  is  no  longer  intended  to  desig- 
nate organs  which  must  co-operate  in  establishing  the 
enactments  called  legislative;  it  is  intended  to  assign 
rather  a  definite  task,  viz.,  that  of  making  law.  Thus  it 
becomes  clearly  evident  that  the  popular  assembly 
functions  as  a  source  of  law,  while  the  sovereign  also, 
where  he  retains  a  part  of  the  legislative  authority,  ac- 
quires the  character  of  an  organ  of  law  and  can  be  con- 
sidered as  sovereign  only  with  reference  to  this  func- 
tion. As  soon  as  the  idea  of  the  sovereign  is  thus  trans- 
formed and  comes  to  consist,  not  in  a  right  to  com- 
mand, but  rather  in  the  task  of  sharing  in  legislation, 
there  appears  the  new  idea  of  the  state.  This  idea  re- 
gards the  rulership  which  inheres  in  the  state  as  consist- 
ing exclusively  in  the  imperative  power  of  law  and 
thus  regards  this  rulership  as  existing  wherever  there 
is  a  rule  of  law,  however  made.  This  idea  of  the  state 
first  gains  complete  expression  where  either  the  repub- 
lican or  the  parliamentary  form  of  government  has 
developed.  Where,  however,  the  king's  right  of  sanc- 
tion is  still  a  living  right,  as  (formerly)  in  Prussia,  the 
old  notion  of  sovereignty  is  not  entirely  displaced.  For 

The  modern  idea  of  the  State.  3 


34  THE   MODERN   IDEA  OF  THE   STATE 

this  right  of  sanction  can  be  regarded  as  the  exercise  of 
a  subjective  right  to  command,  and  frequently  is  so 
regarded.  It  is  not,  therefore,  the  function  of  an  organ 
of  law,  a  function  standing  on  the  same  level  as  that 
of  the  popular  assembly,  as  the  modern  idea  of  the 
state  requires.  The  sole  rulership  of  the  law  emerges 
only  where  law-making  rests  exclusively  in  the  hands 
of  the  popular  assembly,  since  the  popular  assembly 
gets  its  significance  from  what  it  represents,  viz.,  the 
nation's  sense  of  right.  It  is  therefore  the  bearer  of  that 
spiritual  power  from  which  is  derived  the  rulership  and 
the  imperative  nature  of  law. 

XIV.  The  Supplanting  of  the  Authority  of  the  Sov- 
ereign by  the  Authority  of  the  Law.  What  has  caused  the 
idea  of  sovereignty,  the  idea  of  an  independently  valid 
right  to  command,  to  give  way  to  the  authority  of  the 
law?  The  answer  to  this  question  is  to  be  found  in  the 
fact  that,  with  the  introduction  of  the  constitutional 
system,  the  community  recovered  its  own  organ  for 
law-making  in  the  form  of  the  popular  assembly.  It  was 
just  the  loss  of  such  an  organ  in  the  Middle  Ages  that 
made  possible  the  rise  of  a  sovereign  authority  stand- 
ing upon  its  own  foundation.  It  will  not  be  denied  that 
this  authority,  which  reached  its  highest  development 
in  the  monarchical  form  of  government,  played  an  im- 
portant part  in  the  lives  of  nations  and  that  civiliza- 
tion was  advanced  through  personal  rulership.  It  is  ad- 
mitted also  that  such  a  personal  authority  lost  its 
right  to  exist  only  when  the  people  attained  a  stage  of 
civilization  in  which  a  vital  and  powerful  sense  of  right 


AUTHORITY  IN   HISTORY  35 

among  the  citizens  made  itself  continuously  felt  and 
did  not  merely  break  out  sporadically  in  revolutions 
and  reformations.  We  do  not  in  the  least  deny  that  the 
notion  of  sovereignty  has  been  justified;  we  hold 
merely  that  among  civilized  peoples  it  is  now  no  longer 
recognized  and  that  accordingly  it  must  be  expunged 
from  political  theory.  Obviously  the  authority  of  the 
law  is  extending  its  field.  Legal  convictions  are  devel- 
oping in  lower  and  lower  strata  of  the  population  and 
consequently  the  sense  of  right  of  whole  classes  must 
be  more  and  more  taken  into  account.  Moreover, 
beyond  the  limits  of  national  states  a  common  sense 
of  right  is  taking  form  and  an  international  law  is 
growing  up  which  is  wider  in  extent  than  ever  before. 
An  impersonal  power  is  taking  the  place  of  a  personal 
authority;  a  spiritual  rulership  in  place  of  "sic  volo  sic 
jubeo."  In  this  conception  the  modern  idea  of  the  state 
reaches  its  culmination,  and  it  the  authority  of  law  is 
thus  made  supreme,  this  merely  indicates  the  place 
which  that  authority  has  a  right  to  claim  by  virtue  of 
its  real  rulership.  Thus  the  power  which  alone  ruled  the 
community  in  the  age  of  the  people's  law  again  attains 
sole  validity.  The  legal  order  of  this  original  commu- 
nity did  not  owe  its  validity  to  the  authority  of  a  sov- 
ereign and  the  same  is  true  in  the  vastly  greater  com- 
munity of  the  present  time.  Between  the  two  lie  cen- 
turies in  which  the  authority  of  the  sovereign  was  op- 
posed to  the  authority  of  law  and  in  which  we  find 
political  theory  repeatedly  attempting  to  establish  a 
relationship  between  the  two.  The  culmination  of  the 
sovereign's  authority  was  reached  in  the  eighteenth 


36  THE   MODERN   IDEA  OF  THE   STATE 

century,  when  the  authority  of  law  lost  its  independ- 
ence and  law  was  regarded  as  the  will  of  the  sovereign. 
Since  the  French  Revolution,  when  a  legislative  organ 
begins  to  be  active  in  the  community,  a  change  has 
taken  place.  Step  by  step  this  organ  has  succeeded  in 
re-establishing  the  validity  of  law  as  against  the  sov- 
ereign. Political  theory  finds  itself  confronted  again 
with  a  dualism  of  authorities  until,  under  the  theory 
and  practice  of  the  legal  state,  this  dualism  is  removed 
and  the  sole  rulership  is  again  assigned  to  law. 

Political  theory  must  now  concern  itself  primarily 
with  making  clear  the  basis  of  this  rulership. 


CHAPTER  III 

THE   BASIS  OF  THE   BINDING  FORCE  OF  LAW 

I.  The  Concept  of  the  Sovereignty  of  Law.  The  theory 
of  the  sovereignty  of  law  may  be  taken  either  as  a  de- 
scription of  an  actually  existing  condition  or  as  a  prin- 
ciple the  realization  of  which  ought  to  be  striven  for. 

If  the  phrase  is  used  in  the  sense  of  a  theory  which 
generally  controls  practice,  it  is  applicable  only  where 
there  is  no  other  authority  than  that  of  the  law  which 
is  actually  in  force.  In  particular,  it  would  not  apply 
where  there  is  a  sovereign  having  an  authority  inde- 
pendent of  the  law.  It  is  quite  otherwise,  however,  if 
the  theory  refers  to  some  one's  idealization  of  the  law. 
In  this  case  the  theory  involves  an  effort  to  realize  this 
"just"  law  as  far  as  possible  and  thus  to  constitute  the 
state  in  such  a  way  as  to  realize  the  idea  of  justice. 
This  second  sense  in  which  the  theory  may  be  under- 
stood assumes  that  the  condition  implied  in  the  first 
meaning  has  already  been  realized  and  that  as  a  result 
power  springs  from  the  positive  law  and  not  from  a 
sovereign.  After  power  has  thus  been  made  to  depend 
solely  upon  positive  law,  the  next  step  in  the  develop- 
ment of  the  state  is  to  improve  the  content  of  the  law 
as  much  as  possible. 

Consequently,  a  careful  distinction  between  law 
(Recht)  and  justice  (Gerechtigkeit)  is  as  important  for 


38  THE   MODERN   IDEA   OF   THE    STATE 

the  theory  of  the  sovereignty  of  law  as  for  jurispru- 
dence. Usage  is  uncertain,  especially  with  reference  to 
the  word  law  (Recht),  which  is  not  always  used  in  con- 
tradistinction to  justice  (Gerechtigkeit)  but  sometimes 
as  synomymous  with  it.  When,  for  example,  one  speaks 
of  a  conflict  with  law  or  right  (Recht),  he  can  be  under- 
stood to  mean  either  a  conflict  with  effective  legal  rules 
or  with  the  idea  of  justice.  It  is  necessary  at  the  start, 
therefore,  to  insist  that  in  investigating  the  basis  of  the 
binding  force  of  law,  this  word  law  (Recht)  is  taken  to 
mean  the  totality  of  effective  legal  rules.  Accordingly, 
the  question  whether  these  rules  really  embody  justice, 
—  whether  the  standard  applied  in  promulgating  or 
establishing  them  was  the  just  one,  -  -  need  not  be 
considered.  Though  the  will  of  the  legislator  may  be  a 
sufficient  reason  for  our  accepting  legal  rules  as  having 
binding  force,  there  is  always  the  possibility  of  showing 
that  the  standard  applied  by  the  legislator  does  not 
correspond,  or  only  partly  corresponds,  with  the  idea 
of  justice.  The  investigation  of  this  standard  is  not  our 
task,  but  rather  that  of  legal  philosophy.  We  must 
keep  our  eyes  fixed  solely  upon  the  law  which  is  in 
force. 

But  when  can  one  speak  of  law  which  is  in  force? 
In  principle  this  raises  the  same  question  as  that  which 
came  up  earlier  regarding  the  authority  of  the  sover- 
eign, viz.,  Whence  comes  the  sovereign's  right  to  rule? 
Why  is  he  able  to  exercise  an  authority  which  citizens 
are  bound  to  obey?  So  long  as  the  authority  of  the 
sovereign  was  taken  as  the  starting  point,  the  basis  of 
this  authority  was  sought  either  in  the  will  of  God  or  in 


THE   BASIS   OF  THE   BINDING   FORCE  OF  LAW        39 

an  original  social  compact  or  compact  with  the  sov- 
ereign, or  in  the  natural  power  of  the  strong  over  the 
weak.  The  theory  of  the  sovereignty  of  law,  on  the 
other  hand,  takes  account  only  of  that  basis  for  author- 
ity which  it  finds  in  the  spiritual  life  of  man,  and 
specifically  in  that  part  of  this  spiritual  life  which 
operates  in  us  as  a  feeling  or  sense  of  right.  The  law 
which  is  in  force,  therefore,  includes  every  general  or 
special  rule,  whether  written  or  unwritten,  which 
springs  from  men's  feeling  or  sense  of  right.  For  the 
theory  of  the  sovereignty  of  law,  the  basis  of  authority 
lies  in  an  internal  force,  and  not  in  an  external  title  as 
it  does  for  the  theory  of  state  sovereignty.  No  judg- 
ment is  passed  upon  the  content  of  the  specific  rules 
emanating  from  this  power.  The  sense  of  right  as  it 
actually  reveals  itself,  with  all  its  defects,  is  recognized 
as  the  original  source  of  authority. 

The  sovereignty  of  law  can  be  regarded  either  as  a 
record  of  what  is  already  real  or  as  a  state  of  affairs 
which  ought  to  be  realized.  The  reality  corresponds  to 
the  theory  if  the  sense  of  right  of  the  members  of  the 
community  is  unrestrained  in  its  operation  and  if  all 
rights  and  powers  proceed  solely  therefrom.  The  theory 
has  not  been  realized,  or  has  not  been  completely  real- 
ized, if  any  authority  independent  of  the  law  is  able 
to  assert  itself  successfully.  In  the  latter  case,  the  idea 
of  sovereignty,  implying  the  natural  subjection  of  the 
people  to  such  an  authority,  still  remains  active.  On 
the  whole,  it  may  be  said  that  the  theory  of  the  sov- 
ereignty of  law  has  gained  supremacy  in  the  practice 
of  the  western  European  states.  In  the  eastern  states, 


40  THE    MODERN    IDEA   OF   THE    STATE 

especially  in  Germany,  Austria,  and  Hungary,  this  is 
(or  was)  not  entirely  the  case;  consequently  in  these 
countries  the  notion  of  a  sovereign  authority  standing 
outside  the  law,  though  more  or  less  limited  by  law, 
still  lies  at  the  basis  of  political  theory.  Where  this 
notion  persists  in  practice  there  is  a  dual  authority, 
the  untenableness  of  which  I  have  tried  to  show  in  my 
Lehre  der  Rechtssouverdnitdt.  The  original  contribution 
of  the  theory  of  the  sovereignty  of  law,  however,  was 
not  primarily  the  elimination  of  the  twofold  authority 
of  sovereign  and  of  law.  Unity  might  be  attained,  and 
indeed  actually  was  attained  in  the  eighteenth  century, 
by  deriving  the  authority  of  law  from  the  authority  of 
the  sovereign.  The  originality  of  the  theory  lies  rather 
in  the  fact  that  it  has  brought  within  the  law  what  pre- 
viously has  always  been  outside  it.  The  unsubstantial 
nature  of  the  sovereign's  authority  and  its  lack  of  any 
real  foundation  made  it  necessary  to  examine  the  basis 
of  any  and  all  authority.  And  when  actual  practice  was 
carefully  examined,  it  was  evident  that  the  law,  the 
positively  established  law,  had  to  be  recognized  not 
only  as  the  source  of  the  rights  and  obligations  ot  citi- 
zens, but  also  as  the  basis  of  the  so-called  rights  of  the 
sovereign  or,  if  one  prefers,  of  the  constituted  powers 
of  government.  After  the  introduction  of  the  represent- 
ative system  this  view  gradually  gained  acceptance. 
It  clothed  itself  in  the  theory  of  the  legal  state  (Rechts- 
staat)  from  which  the  theory  of  the  sovereignty  of  law 
had  only  to  draw  the  necessary  conclusions. 

But  after  the  law  came  to  be  recognized  as  the  basis 
of  all  private  rights  and  governmental  powers,  it  be- 


THE   BASIS  OF   THE    BINDING   FORCE   OF  LAW        41 

came  necessary  to  consider  also  how  a  rule  might  get 
the  quality  of  law,  that  is,  how  it  came  to  have  binding 
force.  It  was  no  longer  enough  to  refer  to  the  various 
abstract  personalities  behind  which  the  old  notion  of 
sovereignty  had  sheltered  itself,  such  as  the  state,  the 
legislature,  the  people,  or  the  parliament.  It  was  neces- 
sary to  discover  a  sovereign  having  the  highest  degree 
of  reality.  The  task  was  made  easier  by  the  fact  that 
the  investigation  coincided  with  the  new  movement  in 
the  field  of  jurisprudence  which  denied  the  identity  of 
statutory  law  (Gesetz)  with  law  in  general  (Recht)  and 
which  called  into  existence  the  so-called  Free  School 
of  Law.  This  School  also  was  interested  in  the  basis  of 
the  validity  of  law.  From  the  efforts  of  the  two  move- 
ments a  first  step  was  taken  on  the  road  to  a  realistic 
theory  of  the  state  and  of  law.  The  view  developed  that 
the  main  support  of  law  and  of  the  binding  force  of  its 
rules  lies  not  outside  man  but  within  him  and  specif- 
ically in  his  spiritual  life  as  this  reveals  itself  in  his  feel- 
ing and  sense  of  right. 

II.  The  Authority  of  Law  as  the  Ruler  ship  of  Will. 
However,  before  we  attempt  to  define  more  exactly 
the  basis  of  law  indicated  above,  we  must  consider  two 
other  theories  of  the  binding  authority  of  law.  This 
authority  has  been  derived  either  from  the  wills  of  the 
individuals  subject  to  the  law  or  from  the  will  of  a  ruler 
who  is  conceived  as  sovereign.  The  first  of  these  theo- 
ries is  most  definitely  stated  by  Grotius,  who  derives 
the  community  and  consequently  also  the  law  from  a 
compact  between  the  members  of  society.  In  no  other 


42  THE   MODERN   IDEA  OF  THE   STATE 

manner,  he  maintains,  can  the  binding  force  of  the 
actually  existing  law  be  established.  "For  some  mode 
of  obliging  themselves  was  necessary  among  men,  and 
no  other  natural  mode  could  be  imagined."  1)  If  we  ask 
where,  in  turn,  the  compact  gets  its  binding  force,  the 
answer  is  natural  law  with  its  requirement  of  "observ- 
ing compacts."  This  compact  is  attested  by  entrance 
into  the  community;  by  this  act,  it  is  assumed,  the 
individual  has  expressly  or  tacitly  consented  to  the 
authority  of  the  rules  which  spring  directly  or  indi- 
rectly from  the  community.  "For  those  who  had  joined 
any  community,  or  put  themselves  in  subjection  to  any 
man  or  men,  either  expressly  promised,  or  from  the 
nature  of  the  case  must  have  been  understood  to  prom- 
ise tacitly,  that  they  would  conform  to  that  which 
either  the  majority  of  the  community,  or  those  to 
whom  the  power  was  assigned,  should  determine."  2) 
Rousseau  constructed  his  theory  of  popular  sov- 
ereignty upon  this  idea  and,  as  Kelsen  rightly  observes 
in  his  Hauptprobleme  der  Staatsrechtslehre,  it  frequently 
appears  even  to-day  in  legal  and  political  theory.  It 
may  be  seen  particularly  in  Bierling,  whose  "recogni- 
tion theory"  agrees  in  its  fundamental  idea  with  the 
contract  theory,  since  he  founds  the  binding  force  of 
law  upon  its  acceptance  by  the  individual  members  of 
society.  In  the  formulation  of  many  statutory  provi- 
sions the  same  notion  is  occasionally  encountered,  as 
when  such  a  phrase  as  "they  bind  themselves"  is  em- 
ployed. The  implication  is  that  it  is  the  human  will  and 

*)  De  jure  belli  ac  pads,  Prolegomena,  Sect.  15. 
»)  Ibid. 


THE   BASIS   OF   THE    BINDING   FORCE   OF   LAW         43 

not  the  law  which  binds.  Sometimes  also  the  human 
will  serves  as  the  basis  of  law,  for  example,  in  the 
explanation  of  provisions  relating  to  intestate  succes- 
sion and  the  so-called  dispositive  law. 

Opposed  to  the  conception  that  the  binding  force 
of  law  is  derived  from  the  will  of  the  individual  is  the 
view  which  traces  it  back  directly  to  the  sovereign  au- 
thority. According  to  the  latter  view,  the  sovereign  is 
not  set  up  by  individuals  but  is  either  a  divine  institu- 
tion or  inherent  in  nature  along  with  the  community 
(the  Catholic  point  of  view) .  The  authority  of  the  sov- 
ereign, therefore,  is  ultimate  and  from  it  springs  the 
validity  of  law. 

Both  these  theories  have  this  in  common,  that  they 
take  the  will  as  the  basis  of  the  binding  force  of  law. 
In  the  first  case  it  is  the  will  of  the  individual ;  in  the 
second  it  is  the  will  of  the  sovereign.  In  the  first,  the 
foundation  of  law  is  sought  in  man ;  in  the  second,  it  is 
sought  outside  him. 

When  the  binding  force  of  law  is  derived  from  an 
ultimate  sovereign  authority,  the  objective  validity  of 
law  is  most  definitely  asserted.  It  does  not  matter 
whether  the  rules  retain  any  connection  with  the  spirit- 
ual life  of  the  individual;  the  law  is  valid  merely  be- 
cause it  is  the  will  ot  the  sovereign.  The  spiritual  life 
of  the  people  who  chance  to  be  subject  to  such  a  sov- 
ereign and  whose  lives  are  necessarily  affected  by  these 
rules  counts  in  principle  for  nothing  against  the  will 
of  the  sovereign.  The  sovereign  may  take  account  of 
the  popular  feeling  and  sense  of  right,  and  indeed  is 
likely  to  do  so  from  motives  of  expediency,  perhaps  in 


44  THE   MODERN   IDEA  OF    THE   STATE 

order  to  counteract  resistance  and  to  secure  a  volun- 
tary obedience  to  his  decrees ;  but  in  principle  the  rules 
which  the  sovereign  establishes  possess  an  entirely  in- 
dependent validity. 

The  other  view,  which  rests  the  validity  of  legal  rules 
upon  the  will  oi  the  individual,  robs  the  law  of  all 
objectivity.  If  the  rule  is  effective,  it  is  valid;  otherwise 
not.  But  according  to  this  view  the  spiritual  content 
of  the  rule  attains  its  rightful  place.  A  legal  rule  aims 
to  control  the  spiritual  life  of  the  individual  and  the 
theory  in  question  supplies  the  conditions  of  this  con- 
trol by  establishing  a  harmony  between  that  life  and 

the  rules. 

^/ 

III.  Criticism  of  the  Rulership  of  Will.  Neither  of 
these  two  views  can  be  maintained.  The  latter  is  unten- 
able because  the  law,  which  has  for  its  purpose  the 
control  of  the  human  will,  cannot  derive  its  binding 
force  from  that  will.  The  harmony  which  this  view  was 
said  to  establish  is  not  one  between  the  individual's 
sense  of  right  and  the  content  of  the  rule,  but  a  har- 
mony between  his  will  and  the  rule.  Thus  the  law  loses 
its  normative  character;  it  completely  forfeits  its  ob- 
jectivity and  stands  in  conflict  with  reality. 

The  other  view  is  untenable  because  there  is  not  in 
reality  a  sovereign  endowed  with  a  subjective  right  to 
command.  In  the  titles  of  king  and  emperor  tradition 
and  history  may  still  prolong  the  fiction  of  a  personal 
authority,  just  as  this  fiction  still  finds  a  place  in  ortho- 
dox theology,  which  uses  such  an  authority  for  its  dog- 
matic purposes.  But  as  a  matter  of  fact  we  are  no 


THE   BASIS   OF  THE   BINDING   FORCE   OF   LAW         45 

longer  able  to  recognize  any  man  as  endowed  with  the 
right  to  exact  obedience.  Nor  is  there  to-day  any  Jaco- 
bin who  believes  that  a  right  to  obedience  ought  to  be 
attributed  to  the  people.  Moreover,  upon  rational 
grounds  it  can  be  proved  that  the  right  is  an  impossi- 
bility, since  the  possessor  of  such  a  right  is  not  a  living 
being  but  merely  an  idea.  The  notion  that  the  state  is 
the  possessor  of  authority  has  persisted  longest.  But 
that  this  conception  also  lacks  reality  is  proved  by  the 
inability  of  the  German  school  to  maintain  it  in  the 
face  of  actual  practice  and  in  the  face  of  the  theory  of 
the  legal  state,  which  also  subordinates  the  state  to  law. 

IV.  The  Conditions  for  the  Validity  of  Law.  In  spite 
of  the  untenableness  of  both  these  explanations  of  the 
validity  of  law,  the  insight  into  the  meaning  of  law 
which  each  presents  from  its  own  point  of  view  retains 
its  value.  So  far  as  the  law  is  thought  of  as  a  rule  it 
must  necessarily  satisfy  two  conditions.  In  the  first 
place,  it  must  depend  for  its  validity  upon  a  power 
standing  outside  human  will  and  thus  possess  objec- 
tivity with  reference  to  this  will.  In  the  second  place, 
since  law  has  for  its  purpose  the  determination  of  con- 
duct, the  content  of  its  rules  must  accord  with  the 
spiritual  nature  of  the  men  to  whom  it  is  to  be  applied. 

V.  The  Basis  of  Legal  Rules.  These  two  fundamental 
conditions,  which  hold  for  every  rule,  are  entirely  satis- 
fied by  the  theory  of  legal  obligation  defended  in  this 
work.  It  takes  the  spiritual  nature  of  man  as  its  point 
ot  departure.  And  of  the  many  human  feelings,  some 


46  THE   MODERN   IDEA  OF  THE   STATE 

of  which  are  more  developed  and  some  less,  it  empha- 
sizes one,  viz.,  the  feeling  for  right  (Rechtsgeftihl}  .  This 
feeling,  —  inducting  as  its  less  developed  form  the  in- 
stinct for  right  (Rechtsinstinkt]  and  as  its  more  devel- 
oped form  the  sense  of  right  (Rechtsbewusstsein\  .  —  is 
as  effective  among  men  as  the  moral,  the  aesthetic',  and 
the  religious  sense,  to  say  nothing  of  other  feelings  such 
as  love  and  friendship.  This  feeling  for  right,  like  the 
other  feelings,  in  no  sense  owes  its  existence  to  the 
human  will  and  in  its  operations  it  is  independent  of 
the  will.  It  is  more  in  evidence  in  some  individuals  than 
in  others,  but  it  may  safely  be  considered  a  natural  and 
universal  human  impulse.  It  is  not  necessary  to  inquire 
here  whether  it  is  an  ultimate  and  irreducible  part  of 
human  nature  (as  we  should  ourselves  be  inclined  to 
hold)  nor  to  fix  accurately  the  boundaries  between  it 
and  the  other  mental  faculties,  such  as  the  moral  sense. 
It  is  sufficient  for  our  purposes  to  have  established  the 
fact  that  this  feeling  for  right  is  a  universal  human 
impulse  which  calls  forth  a  specific  reaction  with  re- 
spect to  our  own  behavior  and  that  of  other  men.  The 
rules  which  originate  from  this  reaction  are  rules  of 
right  or  law;  they  have  objective  validity  also  against 
the  will  of  the  individual  whose  sense  of  right  is  taken 
as  standard,  for  the  feeling  of  right  is  independent  of 


The  law,  therefore,  is  the  manifestation  of  one  of  the 
countless  valuations  which  we  make  as  a  result  of  our 
mental  capacities.  We  subject  to  our  judgment  all 
human  behavior  ,x  and  indeed  the  whole  of  reality,  and 
we  can  distinguish  as  many  kinds  of  norms  as  there  are 


THE   BASIS   OF  THE   BINDING   FORCE   OF  LAW       47 

standards  used  in  the  process.  It  is  not  a  matter  of 
choice  whether  we  shall  recognize  these  norms  or  not ; 
we  cannot  act  indifferently  to  them  by  force  of  will. 
Our  inner  nature  reacts  with  or  without  the  will,  and 
we  feel  ourselves  subject  to  anything  which,  as  a  result 
of  this  reaction,  we  judge  to  be  good,  beautiful,  or 
right.  It  is  this  tendency  of  human  nature  to  bestow 
and  recognize  values  which  defines  for  us  the  world  of 
norms  and  which  gives  these  norms  their  power.  Conse- 
quently the  authpritv  of  l^y  afcp  is  to  be  sought  in  the 
reaction  of  the  feeling  for  right.  This  authority  there^ 
tore  lies  within  man  and  not  outside  him. 
""  CBTtfais  natural  mental  faculty  rests  the  validity  of 
all  law.  There  are  no  sources  of  law,  as  the  textbooks 
teach;  there  is  only  one  source  of  law,  viz.,  the  feeling 
or  sense  of  right  which  resides  in  man  and  has  a  place 
""HTliis  conscious  life,  like  all  the  other  tendencies  that 
"~~giVe~"riseto  judgments  of  value.  Upon  this  all  law  is 
based,  whether  it  be  positive  law,"  customary  law,  or 
fhe  nn written  law  in  general.  A  statute  which  does  not 
rest  upon  this  foundation  is  not  law;  it  lacks  validity 
even  though  it  be  obeyed  voluntarily  or  by  compulsion. 
It  must  be  recognized,  therefore,  that  there  may  be 
provisions  of  positive  law  which  lack  real  legal  quality. 
The  legislative  organ  runs  the  risk  of  enacting  rules 
which  lack  the  quality  of  law  either  because  the  organ- 
ization of  the  legislature  is  defective  or  because  it  mis- 
takes what  the  people's  sense  of  right  demands.  On 
the  other  hand,  it  may  happen  even  more  easily  that 
what  is  embodied  in  a  statute  ceases  to  be  law  and  so 
is  no  longer  valid  because  it  has  lost  the  basis  of  its 


48  THE   MODERN    IDEA  OF  THE   STATE 

binding  force.  In  such  a  case  compulsion,  —  the  punish- 
ment or  legal  judgment  which  disobedience  to  the  stat- 
ute entails,  -  -  is  irrelevant.  Constraint  is  justified  by 
the  necessity  of  maintaining  the  law  but  it  can  never 
bestow  legal  quality  upon  a  rule  which  lacks  it.  Mere 
force,  whether  organized  as  in  the  state  or  unorganized 
as  in  an  insurrection  or  revolution,  can  never  give  to  a 
rule  that  ethical  element  which  belongs  essentially  to 
a  rule  of  law.  On  the  contrary,  constraint  can  gain  an 
ethical  quality  only  when  used  in  the  service  of  law. 
Thus  the  rule  must  have  the  definite  character  of  law 
and  it  can  derive  this  only  from  the  feeling  or  sense  of 
right  which  is  rooted  by  nature  in  the  human  mind. 

This  conclusion  regarding  the  binding  force  oi  law  is 
not  drawn  from  a  general  view  of  life  or  from  a  system 
of  philosophy  but  is  forced  upon  us  by  actual  experi- 
ence. We  shall  have  occasion  to  show  this  repeatedly 
and  we  may  therefore  content  ourselves  for  the  present 
with  pointing  out  a  twofold  consideration.  In  the  first 
place,  as  time  goes  on  the  communal  life  of  nations  is 
more  and  more  controlled  by  their  sense  of  right.  The 
influence  of  the  sense  of  right  as  a  social  phenomenon 
is  obvious  to  everyone,  as  well  as  the  decline  of  the 
supremacy  of  various  agencies  of  power,  especially 
those  of  sovereignty.  The  spiritual  life  daily  gains 
greater  strength  as  the  obstructions  fall  away  which 
impeded  the  development  of  associations  based  upon 
it.  And  as  these  associations  gain  strength  and  broaden 
into  relationships  between  the  peoples  of  different 
states,  there  grows  up  a  world  consciousness  which 
guides  the  fate  of  mankind. 


THE   BASIS  OF  THE   BINDING   FORCE   OF  LAW       49 

In  the  second  place,  and  very  closely  connected 
with  this  momentous  fact,  the  communal  life  cannot 
exist  without  a  sens^  of  ffaty-qmong  the  citizens.  Turn 
the  question  as  one  will,  the  sense  of  right  is  intrinsically 
a  power  which  creates  obligations.  In  order  to  uphold 
the  duty  of  obedience  to  a  sovereign  one  must  take  ref- 
uge in  dogmas  or  empty  fictions,  which  have  been  im- 
parted to  men  by  tradition  or  by  scholastic  instruction. 
These  maintain  a  precarious  existence  and  have  never 
shown  themselves  capable  of  permanent  influence.  The 
sense  of  duty,  on  the  contrary,  is  an  original  force  in 
human  life  whose  reality  we  experience  daily.  This  fact 
sheds  a  copious  light  upon  the  existence  and  develop- 
ment of  law  and  upon  the  communal  lile  which  arises 
from  it. 

We  are  therefore  convinced  that  in  basing  the  valid- 
ity of  law  upon  the  sense  of  right  we  stand  upon  the 
firm  foundation  of  fact.  Only  by  establishing  the  au- 
thority of  law  in  this  manner,  moreover,  can  full  ac- 
count be  taken  of  the  ethical  character  of  law.  The  key- 
note ot  the  legal  order  has  an  entirely  different  tone 
when  it  is  understood  as  essentially  a  moral  force 
rather  than  as  a  rulership  imposed  upon  us  and  having 
nothing  to  do  with  our  own  inner  life,  as  something  to 
be  taken  advantage  of  occasionally  to  further  our  own 
interests  and  to  injure  other  persons'  interests.  The 
Positive  School  of  Law  is  to  blame  for  the  fact  that 
this  base  way  of  regarding  law  is  still  dominant  in  prac- 
tice, or  perhaps  we  may  say  it  was.  From  it  proceed 
those  elaborate  artifices  by  which  the  judge  promul- 
gates a  law  whose  worth  has  never  been  tested.  Enough 

The   modern  idea  of  the  State.  4 


50  THE   MODERN   IDEA  OF  THE   STATE 

has  already  been  said  about  this  way  of  creating  law 
and  about  its  results,  which  are  entirely  divorced  from 
all  relation  with  the  spiritual  life.  If  this  mode  of  law- 
making  has  now  been  discarded,  this  is  due  to  the  re- 
alization that  the  authority  of  law  can  be  derived  only 
from  the  human  feeling  and  sense  of  right.  This  spirit- 
ual basis  requires  a  continual  testing  of  the  law  when 
its  administration  is  in  question,  but  not  a  testing 
merely  by  the  standards  of  a  sense  of  right  gained  from 
legal  philosophy.  As  we  have  said,  the  theory  of  the 
sovereignty  of  law  may  set  itself  the  problem  of  deter- 
mining what  is  just  law,  but  here  we  are  dealing  pri- 
marily with  a  theory  arising  from  the  actual  practice  of 
jurisprudence.  Hence  the  question  to  be  answered  is: 
What  is  the  basis  of  the  binding  force  of  positive  law  ? 
If  in  answering  this  question  we  appeal  to  the  sense  of 
right,  this  is  understood  to  mean  the  idea  of  justice, 
manifesting  itself  in  statutes  or  ordinances,  in  custom, 
or  in  unwritten  law,  directly  applied  to  the  solution  of 
concrete  conflicts  of  interests.  To  a  philosopher  or  to 
any  outsider  the  law  thus  declared  may  not  appear  to 
be  just.  The  door  must  be  kept  wide  open  to  criticism 
and  above  all  we  must  avoid  undervaluing  an  act  done 
contrary  to  positive  law  but  in  accord  with  a  higher 
standard  of  right.  Both  are  indispensable  conditions  of 
the  development  of  law.  But  all  this  lies  outside  posi- 
tive law.  If  the  validity  of  this  positive  law  is  derived 
from  the  human  sense  of  right,  this  means  the  sense 
which  lies  at  the  basis  of  the  communal  life  as  this  life 
is  actually  lived.  It  is  of  course  possible,  owing  to  the 
influence  of  numerous  factors  both  material  and  ideal 


THE   BASIS  OF  THE   BINDING   FORCE   OF  LAW       51 

and  because  of  an  imperfect  insight  into  the  nature  of  the 
interests  to  be  evaluated  by  law,  that  this  sense  of  right 
may  be  different  now  from  what  it  formerly  was,  just  as 
it  may  vary  in  different  individuals  under  the  pressure 
of  divergent  experiences  and  interests.  We  have  to  deal 
with  this  more  or  less  imperfect  sense  of  right.  Its  ac- 
tivity produces  rules  and  imparts  to  them  the  character 
of  positive  rules  of  law.  Hence  the  correctness  of 
Stammler's  adage,  "All  positive  law  is  an  attempt  at 
just  law."  l)  Practice  must  content  itself  with  a  legal 
system  whose  rules  are  based  upon  a  defective  sense  of 
right,  that  is,  a  sense  of  right  which  is  more  or  less 
encumbered  in  the  members  of  the  community. 

If  a  higher  justice  is  to  be  evolved,  the  legal  instruc- 
tion of  the  people  must  be  undertaken.  But  one  cannot 
exclude  the  sense  of  right  of  any  individual  who  is  in  a 
position  to  share  in  the  spiritual  life  of  his  time.  The 
only  restriction  involved  in  the  theory  of  the  sense  of 
right  lies  in  the  fact  that  the  operation  of  this  sense 
must  be  confined  within  its  natural  boundaries,  that  is, 
it  must  take  part  in  law-making  only  for  those  inter- 
ests which  the  members  of  the  community  understand. 
If  they  are  required  to  decide  upon  the  legal  value  of 
interests  about  which  they  have  no  knowledge,  their 
minds  are  compelled  to  react  upon  phenomena  from 
which  they  have  experienced  no  effects.  The  exclusion 
of  such  persons  from  law-making  cannot  be  taken  as 
denying  that  the  sense  of  right  is  the  basis  of  law.  We 
shall  return  to  this  important  point  when  we  take  up 
the  quality  of  the  sense  of  right. 

*)  Die  Lehre  von  dem  richtigen  Recht,  1902,  p.  31. 


52  THE    MODERN    IDEA  OF  THE   STATE 

VI.  Objections  to  the  Theory.  It  is  remarkable  that  it 
is  so  difficult  for  many  persons  to  accept  the  sense  or 
feeling  of  right  as  the  basis  of  positive  law.  History, 
even  that  of  the  present  time,  daily  attests  the  strength 
of  this  feeling.  It  gives  rise  to  revolts  and  revolutions; 
it  overthrows  well-established  dynasties  and  sets  up 
democracies;  it  changes  the  meaning  of  statutes  and 
constitutions ;  it  purifies  a  tainted  political  atmosphere 
like  a  thunder  storm.  And  yet  it  is  assumed  that  the  le- 
gal order  within  which  an  entire  people  conducts  its 
ordinary  affairs  from  day  to  day  has  no  need  of  this 
spiritual  power  to  establish  its  validity.  To  us  this  is  in- 
comprehensible. It  might  perhaps  be  intelligible  if  the 
acceptance  of  this  power  as  the  basis  of  practical  legal 
relations  were  connected  with  a  particular  system  of 
philosophy,  a  religious  creed,  or  a  political  conviction. 
But  how  can  this  be  the  case  when  the  theory  is  de- 
rived from  facts  which  no  one  denies  ? 

We  have  been  able  to  discover  only  a  few  reasons 
which  to  some  extent  explain  the  opposition  to  our  view, 
which  may  be  called  the  theory  of  the  sense  of  right. 

A.  The  Normative  Character  of  the  Sense  of  Right.  The 
ftrst  reason  lies  in  an  extraordinary  misunderstanding 
of  the  meaning  which  the  sense  of  right  has  for  human 
life.  Several  of  our  opponents  believe  that  it  is  neces- 
sary to  deny  all  normative  character  to  the  sense  of  right. 
It  may  indeed  be  a  valuable  element  of  the  mind  but  it 
carries  with  it  no  compulsion  to  action  and  judgment. 
Hence  there  must  be  a  rule  arising  from  some  other 
source  requiring  us  to  act  and  judge  according  to  our 
sense  ol  right. 


THE   BASIS   OF   THE   BINDING   FORCE   OF   LAW        53 

This  discovery,  at  least  in  Holland,  was  made  by 
Professor  Struycken.  He  says l) :  If  we  ask  "why  this 
instinct,  or  feeling,  or  sense  ot  right,  whether  in  general 
or  in  a  particular  era  of  civilization,  has  the  force  of 
law,  we  find  only  a  few  high-sounding  phrases,  such  as 
'natural  impulse',  'spiritual  power',  'impersonal  force', 
'mental  faculty',  'ethical  force',  etc.,  but  to  the  ques- 
tion itself,  the  fundamental  question,  there  is  no  an- 
swer." And  a  little  later  we  find  these  remarkable 
words:  "Only  the  rule,  'Act  always  as  your  sense  of 
right  prescribes,'  would  stamp  the  content  of  the  sense 
of  right  as  a  norm,  but  this  rule  would  be  a  maxim  im- 
posed upon  the  individual  from  without.  Such  a  maxim 
has  so  little  to  do  with  the  sense  of  right  itself,  consid- 
ered as  a  mental  phenomenon,  that  no  one  thinks  of 
complying  with  it.  No  reasonable  man  will  always  per- 
mit his  conduct  to  be  governed  by  his  feeling  or  sense 
of  right."  2)  Other  Dutch  jurists,  like  Professor  de  Sa- 
vornin  Lohman  and  Professor  Anema,  agree  with  the 
view  expressed  in  this  quotation.  The  former  expresses 
it  even  more  emphatically  in  the  statement  that  the 
sense  of  right  is  merely  the  psychological  proc  ess  from 
which  the  law  arises;  this  psychological  process,  he 
says,  is  then  represented  as  a  reason  why  the  law  is 
ethically  binding  upon  us.  For  Professor  Anema  also 
the  feeling  for  right  is  a  dead  thing  which  must  get  its 
normative  force  from  some  other  source.  He  says:  "If 
a  rule  independent  of  my  will  arises  from  my  feeling  for 
right,  I  am  not  bound  by  it."  And  in  another  place, 

l)  Recht  en  Gezag,  1916,  p.  20. 
»)  Ibid.,  p.  25. 


54  THE   MODERN   IDEA   OF   THE   STATE 

"No  one  considers  himself  bound  by  his  own  sense  of 
right." 

Let  us  carry  somewhat  farther  the  logical  conse- 
quences of  this  point  of  view.  The  idea  at  the  bottom  of 
it  is  that  among  other  experiences  and  feelings  in  our 
consciousness  there  occur  those  of  right  and  wrong. 
These  form  a  particular  kind  of  state  of  mind  which  we 
experience.  They  can  and  do  influence  our  action  and 
judgment.  But  by  what  sensations  or  feelings  we  ought 
to  be  controlled  depends,  according  to  the  view  of  the 
writers  mentioned,  not  upon  the  nature  of  these  sensa- 
tions, but  upon  something  else,  upon  an  ethical  rule, 
which  obligates  us  to  act  in  accord  with  our  sense  of 
justice.  It  is  a  logical  deduction  from  this  reasoning, 
however,  that  we  cannot  stop  at  this  ethical  rule.  What 
is  called  an  ethical  rule  is  itself  a  sensation  in  accord 
with  which  we  ought  to  act.  Morality  does  not  contain 
the  power  to  make  its  own  commands  obligatory  but 
there  is  a  rule  outside  it  which  obligates  us  to  act  and 
judge  according  to  our  moral  feelings.  Now  suppose  we 
succeed  in  finding  this  rule,  say  in  religion.  Then  the 
normative  character  of  religious  feeling  would  in  turn 
lie  outside  this  feeling  itself;  it  would  arise  from  an- 
other rule  obligating  us  to  live  according  to  religious 
feeling.  We  cannot  see  where  this  heaping  up  of  rules 
would  stop,  each  rule  giving  normative  character  to  its 
immediate  predecessor.  Professor  Struycken  says  noth- 
ing about  it,  perhaps  because  he  too  cannot  see.  Un- 
til some  light  is  thrown  upon  this  endless  succession  of 
rules,  we  shall  exercise  our  right  to  regard  it  as  a  curios- 
ity introduced  into  the  discussion  by  sheer  phantasy. 


THE    BASIS   OF   THE   BINDING   FORCE   OF  LAW       55 

Our  own  assumption,  on  the  contrary,  which  is  dis- 
cussed by  Heymans, l)  Lipps,  2)  Hensel,  3)  and  Windel- 
band, 4)  is  based  upon  a  fact  of  common  experience, 
viz.,  that  among  the  feelings  which  make  up  the  con- 
tent of  our  consciousness,  some  are  intrinsically  norma- 
tive and  therefore  present  themselves  to  us  as  imposing 
obligations  to  judge,  think,  and  act  in  accord  with  them. 
The  sense  of  right,  then,  is  a  psychological  fact,  but  a 
fact  of  a  particular  kind,  like  the  feeling  for  beauty,  the 
moral  sense,  the  consciousness  of  truth,  and  religious 
feeling.  What  criterion,  whether  conscious  or  uncon- 
scious, is  applied  in  each  of  these  cases,  and  what  part  of 
life  is  controlled  by  each  of  these  sensations  or  feelings, 
might  be  investigated  at  length,  but  their  primary 
quality  is  simply  the  fact  that  they  are  obligatory. 
Lipps's  remark  with  reference  to  moral  claims,  —  that 
we  feel  ourselves  unconditionally  obliged  by  them  and 
are  therefore  driven  to  realize  them,  —  is  especially 
applicable  to  the  feeling  for  right.  It  is  obvious  that 
something  of  the  nature  of  justice  governs  our  con- 
sciousness. That  this  idea  of  justice  is  something  more 
than  a  mere  matter  for  contemplation,  that  it  actuates 
our  doing  and  forbearing  with  obligatory  force,  is 
shown  by  a  thousand  common  experiences  the  effects 
of  which  we  observe  in  ourselves  and  others.  Is  this 
fact  really  unknown  to  our  opponents?  If  they  see  in 
the  operation  of  the  idea  of  justice  nothing  more  than 
a  motive  of  action  and  judgment  "on  the  same  level" 

1)  Einfiihrung  in  die  Ethik,  1914,  p.  28. 

2)  Die  ethischen  Grundfragen,  1905,  p.  92. 

3)  Hauptprobleme  der  Ethik,  1913. 

4)  Praludien,  Ed.  5,  1915,  Vol.  II,  p.  85. 


56  THE   MODERN    IDEA   OF   THE    STATE 

with  all  other  motives,  they  reduce  human  life  to  a 
puppet-show.  But  we  know,  and  in  the  end  they  know 
too,  that  lite  contradicts  such  a  view.  We  subordinate 
life  to  honor,  the  care  of  our  private  interests  to  justice, 
our  social  success  to  truth,  our  individuality  to  love, 
our  peace  to  the  worship  of  God,  our  physical  enjoy- 
ment to  the  creation  of  beauty.  In  all  these  respects 
"objective  values"  are  effective;  all  belong  to  the 
realm  of  duty.  Any  sense  of  duty  is  an  emanation  from 
the  Absolute.  But  our  opponents  hold  the  singular  view 
that  this  Absolute,  in  order  to  have  validity  for  men, 
must  be  joined  with  a  special  admonition  to  live  up  to 
it.  Hence  they  quite  fail  to  see  that  a  conscious  expe- 
rience may  possess  an  inherent  obligatory  force.  Thus 
they  are  led  to  the  absurdity  that  an  individual  is  not 
bound  by  his  sense  of  right,because  the  latter  is  a  men- 
tal phenomenon  and  "stands  on  the  same  level"  with 
other  motives! 

B.  The  Authority  of  the  Sovereign  as  the  Authority  of 
Law.  In  all  the  criticism  which  has  heretofore  been 
showered  upon  the  theory  of  legal  sovereignty,  there  is 
nothing  which  goes  to  the  roots  of  the  explanation 
which  it  gives  of  the  basis  of  our  positive  legal  order. 
On  the  contrary,  the  adherents  of  that  theory  have 
every  reason  to  complain  that  the  dualism  of  legal  au- 
thority and  sovereign  authority  has  been  maintained 
as  if  there  were  not  the  slightest  difficulty  in  its  way. 
The  question  is  not,  as  has  been  urged  against  us,  wheth- 
er in  earlier  political  theory  and  practice  the  sover- 
eign was  regarded  as  an  independent  source  of  author- 
ity. No  one  can  deny  this  fact,  For  our  own  part,  we 


THE    BASIS   OF   THE  BINDING   FORCE   OF  LAW       57 

have  not  only  admitted  it  but  have  pointed  out  the  ad- 
vantages which  this  idea  carried  with  it.  The  question, 
however,  is  whether  the  view  is  tenable.  Earlier  gen- 
erations framed  a  conception  of  the  source  of  authority 
which  made  it  necessary  to  admit  a  sovereign  acting 
independently  of  the  law.  So  much  is  not  open  to  ques- 
tion. The  point  raised  by  those  who  defend  the  theory  of 
legal  sovereignty  is  whether  this  view  was  correct.  The 
notion  of  sovereignty  or  of  authority  is  exactly  like  the 
idea  of  God.  Would  it  occur  to  anyone  to  adhere  with- 
out criticism  to  the  idea  of  God  under  the  dominion  of 
which  earlier  generations  have  lived?  Yet  who  will 
deny  that  the  concept  of  God,  even  in  its  anthropomor- 
phic forms,  has  been  an  important  ideal  force,  though 
lor  many  persons  it  has  now  been  purified  of  these 
elements?  The  theory  of  the  sovereignty  of  law  will 
assert  no  more  in  its  own  field.  For  this  God  of  an  ear- 
lier time,  this  sovereign  who  issues  his  commands  and 
makes  and  unmakes  law,  we  have  no  further  use.  Re- 
flection upon  the  course  of  affairs  has  revealed  another 
God,  a  spiritual  God,  who  in  this  spiritualized  form 
exerts  a  rulership  over  us  far  more  real  than  that  con- 
tained in  the  idea  of  natural  subordination  to  any  sov- 
ereign endowed  with  fictitious  authority.  Authority  as 
we  now  experience  it,  and  as  we  perceive  it  more  clearly 
day  by  day,  is  fixed  in  our  spiritual  life.  From  this 
life  arises  judgment  about  right  and  wrong.  From  it 
arises  a  majesty  of  authority  which  needs  no  borrowed 
luster  in  order  to  gain  acceptance.  How  far  removed 
men  are  from  understanding  this  new  theory  is  seen 
most  clearly  from  an  objection  urged  against  it,  viz., 


58  THE    MODERN   IDEA   OF   THE   STATE 

that  even  when  personal  authority  was  in  control  it  did 
not  lack  a  legal  title.  "This  personal  authority  was  able 
for  centuries  to  gain  acceptance  as  law ;  the  commands 
and  rules  promulgated  by  it  were  accepted  as  the  legally 
established  order,  and  many  of  these  rules  have  re- 
tained their  legal  force  to  the  present  time.  Here  is  to 
be  found  in  its  highest  perfection  that  positive,  histor- 
ical legal  title  which  has  been  sought."  We  ask  again 
whether  what  was  accepted  for  centuries  as  law  is  still 
recognized  as  law.  That  is  the  main  point  in  the  new 
theory.  The  farther  back  we  go  in  the  life  of  the  com- 
munity, the  more  primitive  become  the  ideas  of  law. 
We  have  not  gone  farther  back  than  the  period  when 
the  absolute  monarchy  rose  and  flourished,  and  we 
encounter  at  that  time  the  idea  of  a  sovereign  endowed 
with  original  power  and  possessed  of  a  competence  out- 
side the  law  of  issuing  commands  to  his  subjects  with 
reference  to  their  social  behavior.  Let  us  assume  for  a 
moment  that  this  constitutes  a  "legally  established  or- 
der for  the  community."  Are  we  thereby  committed  to 
this  theory  for  all  time?  The  way  in  which  the  state 
was  conceived  at  that  time  is  very  different  from  the 
way  in  which  it  is  conceived  at  present.  In  particular, 
men's  minds  were  then  wholly  occupied  with  the  organ- 
ization ol  power  and  this  was  looked  upon  as  the  es- 
sential attribute  of  the  state.  At  the  present  time,  on 
the  other  hand,  as  the  result  of  an  insight  gained  from 
the  actual  course  of  affairs,  the  state  is  conceived  to  be 
essentially  a  system  of  legal  relations  existing  within 
the  community.  But  if  we  start  from  this  empirical 
fact,  we  must  inquire  whether  a  "legally  established 


THE   BASIS   OF   THE   BINDING    FORCE   OF   LAW        59 

order  of  the  community,"  as  this  phrase  was  under- 
stood when  the  idea  of  sovereignty  prevailed,  is  still 
an  adequate  description  of  the  altered  reality.  Does  it 
still  apply  to  a  situation  in  which  there  is  neither  a  sov- 
ereign endowed  with  original  authority  nor  a  natural 
subjection  of  the  people  to  such  a  sovereign?  The 
theory  of  the  sovereignty  of  law  answers  this  question 
in  the  negative.  It  cannot  rest  content  with  an  "histor- 
ical legal  title"  when  the  history  of  such  a  title  has 
come  to  an  end.  Rather  it  takes  the  entire  reality  into 
account  and  maintains  that  now  the  "legally  estab- 
lished order"  has  a  different  basis  from  that  which  was 
supposed  to  be  necessary  so  long  as  men  were  domi- 
nated by  the  notion  of  sovereignty.  To  explain  this  dif- 
ferent basis  and  so  to  make  clear  the  modern  idea  of  the 
state  is  the  task  of  the  theory  of  legal  sovereignty. 

To  discover  this  different  basis  no  speculative  con- 
siderations were  needed  and  no  investigations  into  the 
philosophy  of  law.  It  was  the  actual  course  of  affairs, 
real  life,  which  showed  us  the  basis  for  the  rulership  of 
law.  It  came  to  be  perceived  that  the  legislator  no  longer 
had  a  monopoly  of  law-making.  Besides  the  statu- 
tory law  and  set  over  against  it,  there  was  an  independ- 
ent legal  order  which  had  come  into  control  of  many 
of  the  relations  of  life.  Jurisprudence  was  forced  to  con- 
sider the  basis  of  this  legal  order  and  this  basis  could  be 
found  only  in  the  feeling  for  right  which  exists  among 
the  citizens.  After  this  was  established  the  same  basis 
had  to  be  accepted  to  explain  the  rulership  of  statu- 
tory law,  because  the  authority  of  the  legislator  as  such 
has  no  foundation.  Moreover,  a  twofold  authority,  a 


60  THE   MODERN    IDEA   OF   THE   STATE 

dualism  of  two  kinds  of  law  independent  and  opposed 
to  each  other,  would  be  intolerable,  even  if  it  were  not 
logically  inconsistent.  Thus  a  common  source  was 
found  for  all  law,  however  it  might  originate.  This  re- 
sult led  us  into  the  realm  of  psychology,  from  which  the 
theory  of  legal  sovereignty  adopts  the  view  that  the 
sense  of  right  is  ultimate.  x)  The  whole  legal  order  un- 
der which  we  live  is  thus  traced  back  to  the  operation 
of  this  component  of  the  mental  life.  This  view  in  no 
way  excludes  criticism  or  evaluation  of  the  content  of 
this  legal  order.  We  must  guard  against  the  error  of  the 
theory  of  natural  law,  which  neglected  the  complexity 
of  human  nature  and  reduced  man  to  a  purely  legal  en- 
tity. What  appears  at  a  given  time  as  a  legal  rule  may 
perhaps  be  the  result  of  an  inadequate  knowledge  of 
the  interests  concerned  or  of  prejudice  in  favor  of  spe- 
cial interests.  A  better  knowledge  of  the  former  or  a 
lessened  emphasis  upon  the  latter  might  have  led  to  a 
different  decision.  Moreover,  we  do  not  hold  that  a 
mere  reference  to  the  feeling  for  right  enables  us  to 
dispense  with  the  search  for  the  ultimate  criterion  of 
right.  To  clarify  this  point  an  exhaustive  study,  based 
primarily  upon  experience,  is  needed.  Perhaps  the  out- 
come of  such  a  study  will  oblige  us  to  accept  Struyc- 
ken's  solution,  which  he  offers  however  without  any 
explanation,  that  the  matter  will  be  cleared  up  when  we 
know  "the  ultimate  destiny  of  human  life."  A  modest 
task!  This  is  merely  to  say  that  jurisprudence  is  con- 
fronted with  a  field  lor  investigation  which  is  as  yet 
immeasurable.  It  means  also  that  this  investigation 

J)  Kranenburg,  Tijdschrift  voor  Wijsbegeerte,  1914. 


THE   BASIS   OF  THE   BINDING   FORCE   OF   LAW          61 

must  open  up  to  us  other  and  higher  roads  than  those 
which  fall  within  the  ken  of  the  Positive  School  of  Law, 
which  regards  the  law  as  scarcely  more  than  a  toy  for 
jurists.  However,  in  the  actual  course  of  the  social  life 
we  must  get  along  once  for  all  with  the  judgments  of 
a  more  or  less  imperfect  sense  of  right.  About  the  sense 
ot  right  as  a  fundamental  premise  there  is  no  room  for 
further  discussion;  it  is  the  only  premise  which  pos- 
esses  the  virtue  of  reality.  We  may  regret  the  limita- 
tions of  our  mental  horizon ;  we  may  regard  it  as  a  press- 
ing duty  for  ourselves  and  others  to  furthei  legal  in- 
struction; we  shall  try  to  establish  legal  institutions 
which  permit  the  sense  of  right  of  every  man  to  co- 
operate in  evaluating  the  interests  which  lie  within  the 
circle  of  his  understanding.  Under  no  circumstances, 
however,  can  we  divorce  ourselves  from  the  sense  of 
right  as  it  actually  exists. 

C.  The  Stability  of  Law.  This  brings  us  to  the  third 
difficulty  which  prevents  many  from  accepting  the 
theory  of  the  sovereignty  of  law.  We  can  make  no  use 
of  your  principle,  so  the  argument  runs,  because  it 
makes  the  law  unstable.  This  statement,  however,  is 
in  a  high  degree  misleading.  The  law  has  inevitably  a 
content  of  changeable  value,  and  one  cannot  ask  that 
that  should  be  immutable  which  by  nature  lacks  fixity. 
And  if  one  appeals  to  the  value  which  the  sense  of  right 
attaches  to  a  more  or  less  unchangeable  law,  one  is  in- 
volved in  a  fundamental  contradiction.  By  this  means 
one  succeeds  only  in  preserving  a  rule  which  is  no 
longer  a  rule  of  law.  Stability  of  law  is  a  contradiction ; 
only  stability  of  rules  can  be  attained.  That  fixed  rules 


62  THE   MODERN   IDEA  OF  THE   STATE 

owe  their  legal  character  to  their  fixity  is  nonsense  and 
will  be  maintained  by  no  one.  If  then  this  legal  charac- 
ter depends  upon  something  else  which  is  by  nature 
changeable,  one  must  take  the  law  as  it  is  with  all  its 
changeableness.  It  is  scarcely  necessary  to  remind  the 
reader  that  an  exaggerated  idea  has  been  formed  of  this 
changeableness.  If  we  compare  law  founded  upon  a  sov- 
ereign authority  with  that  founded  upon  the  sense  of 
right,  the  comparison  will  certainly  not  be  unfavora- 
ble to  the  stability  of  the  latter.  For  law  founded  upon 
sovereignty  requires  continual  development  which  must 
be  brought  about  by  appeals  to  history,  to  its  original 
purpose,  to  the  exact  meaning  of  words,  and  to  logical 
deductions.  As  experience  shows,  the  product  of  this 
complication  of  interpretative  machinery  cannot  be 
foreseen.  On  the  other  hand,  law  which  is  based  upon 
the  sense  of  right  is  developed  by  an  evaluation  of 
interests,  and  in  this  process  the  single  decisive  factor 
lies  quite  outside  the  realm  of  dialectic;  the  decisive 
factor  is  the  sense  of  right  which  is  dominant  in  the 
circle  to  which  the  interested  parties  belong. 

After  all,  a  greater  or  less  stability  of  content  makes 
no  difference  in  principle.  As  a  theory  of  religion  cannot 
be  evaluated  by  its  contribution  to  a  beneficent  spirit- 
ual peace,  so  a  basis  of  law  cannot  be  chosen  with  a 
view  to  making  the  content  of  law  easy  to  discover. 
Such  a  choice  must  be  made  only  upon  the  ground  of 
truth.  And  the  theory  of  sovereignty  as  a  basis  for  law 
has  no  truth.  Law  marked  by  absolute  stability  could 
be  secured  only  if  we  had  a  legal  pope  over  us.  To  be 
sure,  this  would  cut  off  a  valuable  element  of  men's 


THE   BASIS   OF  THE   BINDING   FORCE    OF  LAW        63 

mental  life,  for  the  sense  of  right  would  be  rendered 
useless.  But  it  would  make  it  possible  in  all  cases  to 
fix  ex  cathedra  the  limits  within  which  social  life  must 
move.  In  default  of  believers  no  such  legal  pope  is  at 
our  disposal.  But  faith  does  exist  in  a  being  possessing 
far  narrower  authority  and  thus  we  find  in  legal  and 
political  theory  a  sort  of  pope.  He  is  impotent,  how- 
ever, because  he  merely  gets  the  credit  for  what  outside 
forces  have  brought  about,  just  as  all  the  functions  of 
the  state  are  performed  in  the  name  of  a  constitutional 
monarch.  This  pope  is  the  sovereign.  Whoever  cannot 
free  himself  from  a  belief  in  this  automaton,  which 
always  reflects  what  others  have  put  into  it,  is  cherish- 
ing unrealities  and  rejecting  the  truth.  Like  all  other 
norms,  the  law  must  anchor  itself  in  the  human  spirit. 
Whoever  believes  that  he  can  dispense  with  this  basis 
for  its  rulership  is  deceiving  himself.  And  anyone  who 
postulates  sovereignty  in  order  to  preserve  the  stability 
of  the  law  is  introducing  into  the  concept  of  law 
elements  which  weaken  the  binding  force  of  its  rules  and 
which  therefore  ought  never  to  be  used  in  the  framing 
of  any  hypothesis.  When  one  asks  for  stability  in  a  rule 
regardless  of  its  content  as  a  principle  of  right,  one  is 
demanding  something  that  can  be  secured  only  at  the 
cost  of  its  legal  character.  The  degree  of  its  stability  is 
subordinate  to  its  being  based  upon  a  principle  of  right. 
Whoever  asks  for  a  greater  stability  denies  this  basis. 
D.  Force  and  Law.  Still  a  fourth  cause  of  the  opposi- 
tion encountered  by  the  theory  of  legal  sovereignty 
may  be  indicated.  It  is  objected  that  this  theory  is 
one-sided  because  it  deals  only  with  right,  while  the 


64  THE   MODERN   IDEA   OF  THE    STATE 

factor  of  force  must  also  be  taken  into  account.  The 
essential  character  of  law,  says  Professor  Paul  Schol- 
ten,  lies  in  its  twofold  nature  as  ideal  and  fact,  rule 
and  force,  a  phase  of  the  subject  which  is  entirely  mis- 
conceived by  the  theory  of  legal  sovereignty.  Professor 
de  Savornin  Lohman  also  emphasizes  the  same  point. 
He  starts,  however,  from  the  state  and  says  that  a 
theory  to  explain  the  state  "must  take  account  of  both 
elements,  that  of  force  and  that  of  law." 

We  can  answer  this  objection  only  by  referring  to  the 
criticism  to  which  we  have  repeatedly  subjected  this 
dualism  of  law  and  force.  The  main  point,  we  believe, 
has  received  sufficient  emphasis.  In  the  first  place, 
however,  we  must  call  attention  to  a  confusion  of  two 
lines  of  thought  which  occurs  when  it  is  said,  "There  is 
a  dualism  of  force  and  law,  just  as  in  the  individual 
there  exist  side  by  side  the  sense  of  power  and  the  sense 
of  right."  The  fact  that  consciousness  includes  other 
feelings  besides  the  idea  of  justice,  such  as  the  desire  for 
power,  may  be  admitted  without  further  argument. 
Indeed,  we  have  repeatedly  emphasized  this  fact  in  the 
previous  discussion,  where  we  spoke  of  the  factors 
which  interfere  with  the  operation  of  the  idea  of  jus- 
tice. We  have  noted  also  the  means  by  which  this 
disturbing  element  can  be  eliminated,  either  wholly  or 
in  part.  But  the  more  or  less  correct  analysis  of  our 
mental  life  has  nothing  to  do  with  the  essence  of  the 
theory  of  legal  sovereignty.  This  consists  in  the  view 
that  no  authority  outside  the  law  can  be  recognized 
as  lawful  and  therefore  no  duty  to  obey  can  arise  except 
from  a  rule  of  law.  No  one  can  fail  to  perceive  that 


THE   BASIS   OF  THE   BINDING   FORCE   OF  LAW        65 

social  relations  are  often  determined  by  physical  force, 
exercised  either  spontaneously  by  the  individual  or 
with  the  aid  of  the  police,  and  also  by  mental  forces 
which  generally  presuppose  a  background  of  physical 
forces.  Our  theory  in  no  way  denies  this.  It  merely 
denies  that,  in  the  light  of  the  existing  notions  of  law 
and  of  the  state,  there  ought  to  be  a  place  for  a  sov- 
ereign exercising  authority  in  the  enforcement  of  exe- 
cutions and  the  infliction  of  punishment,  and  in  rela- 
tion to  whom  the  people  are  in  a  state  of  subjection, 
while  at  the  same  time  there  is  another  kind  of  subjec- 
tion established  by  law.  This  is  the  dualism  to  which 
the  theory  of  legal  sovereignty  objects,  not  primarily 
because  it  is  a  dualism  but  because  it  is  now  perceived 
that  a  natural  relation  of  subjection  to  a  sovereign  is 
nothing  but  a  fiction,  because  the  conception  of  sov- 
ereignty is  merely  a  logical  construction  which  does  not 
correspond  to  reality,  because  the  basis  of  sovereign 
authority  can  nowhere  be  pointed  out,  and  because  a 
duty  to  obey,  without  which  society  would  fall  to 
pieces,  cannot  be  derived  in  this  way  from  actual  facts 
nor  indeed  be  accepted  as  an  hypothesis.  This  negative 
side  of  the  theory  of  legal  sovereignty  is  not  contested 
by  any  of  its  critics.  But  the  objection  made  against 
its  positive  side,  especially  by  Professor  Anema,  is  un- 
just. He  says:  "If  he  [the  author  of  the  present  work] 
identifies  this  opposition  [between  the  sovereign  and 
law]  with  that  between  force  and  law,  and  if  he  then 
holds  that  formerly  everything  was  wrong  and  now 
everything  is  right,  he  commits  a  serious  injustice." 
The  theory  of  legal  sovereignty  has  never  been  guilty 

The  modern  idea  of  the  State.  5 


66  THE    MODERN    IDEA   OF   THE    STATE 

of  this  injustice.  It  has  emphasized  the  fact  that  accord- 
ing to  earlier  views  the  entire  organization  of  govern- 
mental powers  had  its  own  foundation  and  was  not  a 
product  of  the  legal  order  of  the  community.  We  have 
now  attained  a  different  understanding  of  this  matter, 
since  we  have  raised  the  question  of  the  legal  title  of 
the  sovereign  authority.  It  has  become  clear  that  none 
of  the  titles  which  have  usually  been  assumed  can 
establish  an  obligation  to  obey  and  that  accordingly  the 
sovereign  authority  has  no  basis  of  its  own.  On  the  other 
hand,  this  is  not  the  case  if  law  is  regarded  as  the  source 
of  all  authority.  This  is  not  to  say,  and  no  defender  of 
the  theory  has  said,  that  "formerly  everything  was 
wrong  and  now  everything  is  right."  It  means  merely 
that  former  views  about  the  authority  of  the  sovereign 
cannot  be  accepted  any  longer.  The  case  is  precisely 
like  the  institution  of  slavery,  the  law  of  tithes,  and  the 
like,  which  were  once  universally  regarded  as  legal  insti- 
tutions, but  which  are  now  no  longer  so  regarded. 

It  is  equally  an  error  to  suppose  that  the  theory  of 
legal  sovereignty  is  bound  to  solve  the  opposition  be- 
tween force  and  law.  No  one  denies  that  force  as  well 
as  law  has  had  a  share  in  shaping  social  life.  Nor  is  it 
denied  that  law  has  frequently  been  developed  by  the 
use  of  force  and  by  authority,  or  that  it  still  develops 
in  this  way.  This  is  shown  not  only  in  revolutions  but 
also  in  the  use  of  law  itself  to  exert  compulsion,  as 
happens  for  example  in  the  case  of  obstructive  tactics 
in  parliamentary  bodies,  in  strikes,  and  the  like.  It 
may  turn  out  in  the  end  that  force  so  applied  is  justified 
because  it  tends  to  the  development  of  the  legal  order, 


THE   BASIS    OF  THE   BINDING   FORCE   OF  LAW        67 

even  though  it  is  more  or  less  a  breach  of  the  peace.  On 
the  other  hand,  it  must  be  insisted  that  in  an  increasing 
degree  the  law  organizes  its  own  means  of  development 
and  that,  as  time  goes  on,  it  stands  less  and  less  in 
need  of  an  authority  outside  itself  to  bring  this  devel- 
opment about.  After  an  organization  for  law-making 
has  been  perfected,  and  especially  after  the  decentrali- 
zation of  legislation  has  been  energetically  undertaken, 
force  will  be  ruled  out  as  a  factor  in  the  making  of  law ; 
the  improvement  of  law  will  no  longer  have  to  take 
place  by  fits  and  starts  and  by  means  of  breaches  of 
the  peace. 

So  much  lies  on  the  surface  of  the  theory  of  legal 
sovereignty.  But  its  chief  reason  for  keeping  the  oppo- 
sition of  force  and  law  steadily  in  view  lies  in  the  fact 
that  it  no  longer  identifies  the  power  exercised  by  offi- 
cials, the  police,  and  the  army  in  executions  and  pun- 
ishments with  the  state  or  sovereign  and  contrasts 
this  power  with  the  law.  On  the  contrary,  it  regards 
this  power  as  a  legal  organism,  as  part  of  the  legal  organ- 
ization which  controls  social  life.  In  the  words  of 
Duguit,  organized  compulsion  (executions  and  punish- 
ments) is  one  of  the  many  public  services  which  must 
obtain  their  organization  from  the  law.  According  to  the 
theory  of  legal  sovereignty,  the  belief  must  be  discarded 
that  this  compulsion,  as  a  manifestation  of  the  state  or 
sovereign,  ought  to  have  an  independent  existence. 

Furthermore,  this  theory  does  not  concern  itself  with 
the  sociological  study  of  the  different  forms  in  which 
particular  social  forces  appear  1),  for  it  is  interested 

»)  Cf.  Von  Wieser,  Recht  und  Macht,  1910. 


68  THE   MODERN   IDEA  OF  THE   STATE 

solely  in  that  kind  of  authority  which  arises  from  the 
duty  to  obey.  Such  an  obligation  can  be  derived  solely 
from  the  law.  The  relations  of  the  forces  actually  exist- 
ing in  society  enter  into  its  problem  only  so  far  as 
these  relations  affect  the  operation  of  the  sense  of  right 
and  thus  make  it  necessary  to  minimize  the  effects  of 
possible  disturbances  of  it.  But  in  this  respect  social 
forces  are  not  distinguished  from  other  factors  which 
also  may  endanger  an  effective  declaration  of  the  law. 
On  the  other  hand,  it  is  very  one-sided  to  say,  as  von 
Wieser  does,  that  the  law  is  an  organization  of  actual 
relations  of  power,  for  this  statement  does  not  take 
into  account  the  complexity  of  social  life.  Opposed  to 
or  along  with  the  sense  of  right,  there  exist  in  society 
not  merely  an  actual  force  which  has  to  be  limited  or 
set  aside  by  law,  but  also  numerous  other  mental  proc- 
esses which  affect  the  working  of  the  sense  of  right, 
sometimes  limiting  it  and  sometimes  supporting  it. 
The  law  overcomes  not  only  force  but  also  other  forms 
of  self-interest,  and  law  is  sustained  in  its  control  not 
only  by  men's  feeling  for  right  but  also  by  all  the  vir- 
tues and  spiritual  values  which  reside  in  the  human 
mind. 

Our  final  conclusion  therefore  is  as  follows.  Author- 
ity and  power  exist  in  hundreds  of  forms.  All  these  have 
as  their  common  element  an  obedience  rendered  to  men, 
or  opinions,  or  ideals.  Political  theory  seeks  among  all 
these  sources  of  obedience  that  one  from  which  there 
arises  a  duty  of  obedience  and  it  finds  none  in  which 
this  is  intrinsic  except  the  law,  the  obligatory  force  of 
which  resides  in  men's  sense  of  right.  It  follows  from 


THE   BASIS   OF  THE   BINDING   FORCE   OF  LAW        69 

this  that  the  authority  of  the  state  is  nothing  except 
the  authority  of  law  and  that  the  concept  of  the  state 
in  its  broadest  significance  is  to  be  traced  back  to  the 
particular  legal  order  which  exists  among  a  people. 

VII.  Law  as  the  Rule  of  a  Community.  The  study  of 
the  binding  force  of  the  legal  rule  must  be  followed  by 
an  investigation  of  its  matter  and  content.  From  this 
point  of  view  we  can  say:  The  law  regulates  men's 
conduct  in  order  to  attain' social  ends  and  therefore 
appears  as  the  organization  of  a  community.  Isiaturaily" 
it  makes  no  difference  whether  these  communities  are 
of  a  transitory  nature  or  whether  they  have  been 
formed  for  a  permanent  end.  A  community  exists  when 
two  persons  make  a  contract  of  purchase.  Rules  of  law 
determine  the  conduct  of  the  two  parties  with  reference 
to  the  obligations  arising  from  such  a  contract  and  af- 
ter their  performance  the  community  comes  to  an  end. 
Of  a  more  enduring  kind  are  the  communities  which 
come  into  existence  with  the  formation  of  societies, 
business  partnerships  or  companies,  and  corporate 
foundations.  Still  more  permanent  are  those  communi- 
ties which  have  the  purpose  of  caring  for  public  inter- 
ests, such  as  dike  commissions,  communes,  provinces, 
states,  confederations,  and  federal  states. 

If  every  community  has  as  its  basis  a  social  end,  the 
rules  which  serve  to  attain  this  end  must  be  equally 
binding  upon  every  member  of  the  community,.JThe 
unity  of  purpose  post nlaf ^  y.nity  of  the  legal  rule.  It 
"ToIJows  that  a  common  convir.tinn  of  what  is  n'gh*  nrmgf 
lie  at  the  ba^is  ul  llle1  legal  rules  which  are  valid  for 


70  THE   MODERN   IDEA  OF  THE   STATE 

these  communities.  A  rule  which  arises  solely  from  an 
individual's  feeling  for  right  controls  only  the  will  of 
that  individual  and  hence  cannot  be  a  rule  for 
the  community.  It  is  possible,  of  course,  and  not  in- 
frequently it  happens,  that  an  individual  member  of  a 
community  lives  according  to  a  higher  standard  of 
right  than  is  expressed  by  the  rule  of  the  community, 
but  this  means  merely  that  the  individual  feels  himself 
obliged  to  do  more  than  the  "ethical  minimum"  which 
is  valid  for  all. 

The  legal  rule,  considered  as  the  rule  of  a  commu- 
nity, requires  a  common  conviction^as  to  what  is  right. 
Experience  shows  that  this  is  attainable  up  to  a  certain 
point.  In  the  first  place,  it  should  be  carefully  borne  in 
mind  that  there  is  not  a  special  sense  of  right  for  every 
individual,  in  the  sense  that  the  standard  of  right  dif- 
fers for  every  individual.  There  is  a  standard  of  truth 
which  is  based  upon  universally  valid  criteria,  con- 
trary to  the  view  of  the  Sophists  that  truth  possesses 
merely  an  individual  significance.  Similarly  in  the  law 
also  there  is  a  universally  valid  standard  which  appears 
in  judgments  of  right  and  wrong.  And  Heymans  l)  has 
shown  that  the  same  is  true  of  ethics  also.  Hence  di- 
versity enters  into  our  opinions  as  to  what  is  right  not 
on  account  of  the  standard  which  ought  to  be  applied 
but  because  the  subject  matter  of  legal  evaluation  is 
reflected  differently  in  our  consciousness.  This  subject 
matter  is  the  communal  life  of  men  and  therefore  the 
modes  of  conduct  and  the  interests  connected  with  it. 
If  we  could  adequately  conceive  these  objects,  there 

x)  Einfiihrung  in  die  Ethik,  1914. 


THE    BASIS   OF  THE    BINDING    FORCE    OF   LAW         71 

would  be  no  variety  in  our  convictions  as  to  what  is 
right.  But  in  the  first  place  the  reality  penetrates  our 
consciousness  only  partially,  and  in  the  second  place, 
in  so  far  as  it  does  get  into  our  minds,  it  affects  us  differ- 
ently because  of  our  innate  or  acquired  tendencies. 
Hence  it  follows  that  the  object  of  legal  evaluation  is 
differently  conceived  by  different  men  and  this  dif- 
ference of  conception  gives  rise  to  different  convictions 
as  to  what  is  right.  This  variety  of  attitude,  however, 
is  for  the  most  part  removed  by  the  action  and  reaction 
of  men's  minds  upon  one  another,  by  similarity  of  edu- 
cation, and  by  the  influence  of  environment.  In  pro- 
portion as  this  interchange  becomes  more  vital  and 
more  manifold,  the  possibility  increases  of  bringing 
about  a  certain  similarity  of  ideas  and  a  common  sense 
of  values  and  thus  of  attaining  unity  in  the  convic- 
tions as  to  what  is  right  on  the  part  of  an  increasing 
numBer  of  men.  On  the  other  hand,  great  variety  in  the 
sense  of  right  will  hinder  the  attainment  of  a  single 
legal  rule.  The  effect  of  this  will  be  that  the  community 
may  fall  apart.  Thus  its  purpose  either  cannot  be  at- 
tained or  can  be  attained  only  in  fractional  communi- 
ties which  enjoy  the  conditions  for  developing  a  uni- 
fied legal  rule. 

But  even  if  these  conditions  exist,  unanimity  of  con- 
viction as  to  what  is  right  will  seldom  occur.  Hence  it 
becomes  a  question  how  a  communal  rule,  that  is,  a 
single  legal  rule,  can  be  secured  in  spite  of  differences 
of  opinion  about  its  content. 


72  THE   MODERN   IDEA  OF  THE   STATE 

VIII.  Majority  Rule.  The  answer  to  this  question  is 
most  difficult  in  the  case  of  customary  law.  In  this  case 
the  validity  of  the  law  must  be  based  directly  upon  a 
common  sense  of  right,  though  it  is  regarded  as  binding 
even  upon  those  who  lack  this  sense  or  for  whom  the 
sense  of  right  has  a  different  content.  In  the  case  of 
statutory  law  we  can  and  do  simplify  the  question  by 
personifying  the  legislator  whose  will  made  the  law.  A 
single  rule  of  law  is  assumed  to  follow  from  the  unity 
of  the  legislator's  will.  In  the  case  of  customary  law,  on 
the  other  hand,  it  is  not  possible  to  create  such  a  per- 
sonality, at  least  not  if  the  validity  of  the  law  is  con- 
sidered to  be  based  upon  men's  actual  sense  of  right,  as 
is  done  in  this  book.  The  Historical  School  of  Law,  in- 
deed, derived  even  the  customary  law  from  a  person- 
ality, viz.,  the  "spirit  of  the  nation."  It  thus  assumed  a 
power  independent  of  the  individual  consciousness, 
which  nevertheless  evoked  legal  judgments  with  similar 
content  in  the  individuals.  Thus  for  the  Historical 
School  the  validity  of  customary  law  is  rooted  in  a 
superconsciousness  (the  "spirit  of  the  nation")  inde- 
pendent of  the  concrete  sense  of  right  ;  its  validity  for 
all  individuals  was  established  by  the  unity  of  this 
higher  personality.  But  we  mail 
of  law  is  based  solelvupon  the  concrete 


Hence  for  us  the  existence  of  a  single  legal  rule  and  at 
the  same  time  of  a  difference  of  judgment  regarding 
the  content  of  the  rule  is  not  explained. 

Schuppe,  whose  treatise  on  customary  law  1)  is  too 
little  known,  also  emphasizes  the  concrete  sense  of 

J)  Das  Gewohnheitsrecht,  1890. 


THE   BASIS  OF  THE   BINDING   FORCE   OF  LAW       73 

right  in  explaining  the  binding  force  of  law,  but  he 
involves  himself  in  a  labyrinth  of  fictions  in  order  to 
show  that  customary  law  is  rooted  in  a  universal  con- 
viction about  right.  By  the  use  of  this  argument  he 
tries  to  refute  Zitelmann's1)  contention  that,  if  custom- 
ary law  originates  in  the  working  of  men's  sense  of 
right,  it  is  binding  only  upon  those  who  obey  it. 

Schuppe  tries  to  escape  from  this  dilemma  by  saying 
that  action  which  deviates  from  the  rules  of  customary 
law  is  due  either  to  a  divergent  conviction  as  to  what 
is  right  or  to  the  fact  that  the  feeling  for  right  is  over- 
come by  other  impulses.  In  the  latter  case  the  action  is 
wrong ;  in  the  former  case,  right  or  law  (Recht)  is  op- 
posed to  another  right  or  law.  But  such  an  opposition  is 
intolerable  in  practice,  and  hence  Schuppe  tries  to  save 
himself  by  laying  down  the  rule:  "You  ought  to  have 
the  common  conviction  as  to  what  is  right."  On  this 
point  we  are  unable  to  agree  with  the  learned  author. 
One  makes  no  progress  by  setting  up  an  obligation  to 
have  an  obligation.  For  every  obligation  must  be  rooted 
in  the  convictions  of  the  person  who  has  the  obligation, 
and  in  the  case  which  Schuppe  supposes,  it  is  precisely 
this  conviction  which  is  lacking.  No,  Zitelmann  is  per- 
fectly right;  customary  law  in  the  sense  in  which  he 
understands  the  Historical  School  is  binding  only  upon 
those  who  obey  it.  In  other  words,  if  customary  law 
owes  its  binding  force  to  the  dictates  of  the  concrete 
sense  of  right,  only  those  men  are  subject  to  it  by  whom 
these  dictates  are  felt.  Still  it  is  invariably  true  that 

*)  "Gewohnheitsrecht  und  Irrthum,"  Archiv  f.  d.  civil.  Praxis,  V  1. 
LXVI. 


74  THE   MODERN   IDEA  OF  THE   STATE 

where  customary  law  exists  it  is  applied  also  to  those 
whose  sense  of  right  is  opposed  to  it.  Does  this  not 
imply  that  they  ought  to  act  according  to  the  law  which 
is  imposed  upon  them  ?  If  so,  then  for  them  the  validity 
of  this  law  rests  upon  something  other  than  the  dic- 
tates of  their  own  sense  of  right.  Thus  the  explanation 
which  we  gave  of  the  binding  force  of  these  rules  would 
have  to  be  given  up.  But  it  cannot  be  given  up,  for 
there  is  no  real  ground  for  the  binding  force  of  law 
except  the  agreement  of  its  rules  with  men's  sense  of 
right. 

The  solution  of  this  difficulty,  then,  must  be  sought 
elsewhere,  and  it  is  really  to  be  found  by  bearing  in 
mind  the  fact  emphasized  above,  that  the  law  is  the 
rule  of  a  community.  It  follows  from  this  that  the  law 
cannot  include  rules  which  are  mutually  contradictory. 
The  purpose  of  a  community  can  be  realized  only  if 
there  is  a^ingle^rule^The  value  of  having  a  single  rule 
is  therefore  fundamental.  This  is  the  highest  legal  value, 
a  higher  value  than  that  belonging  to  the  content  of  the 
rule,  since  having  a  single  legal  rule  is  an  indispensable 
condition  for  attaining  the  end  of  the  community.  This 
end  can  be  attained  more  or  less  completely  in  a  variety 
of  ways,  but  it  cannot  be  attained  at  all  without  having 
a  single  rule.  Hence  m ir  sense  of  r\gfot  attaches  the 

highest  valiifr  fn  having  a  ftjpglp  rnlp  ^n4  gafTififW.  T1 

liecessary.  a  particular  content 
be  preferred. 

If  this  analysis  of  our  sense  of  right  be  correct,  the 
question  arises  what  content  must  be  sacrificed  in  or- 
der to  attain  a  single  legal  rule.  If  the  sense  of  right 


THE   BASIS   OF    THE   BINDING    FORCE   OF   LAW      75 

among  the  members  of  a  community  differs  regarding 
the  rules  to  be  obeyed  (assuming  the  sense  of  right  to 
be  equal  in  quality),  those  rules  possess  a  higher  value 
which  a  majority  of  the  members  are  willing  to  accept 
as  rules  of  law.  It  is  necessary  that  there  should  be  a 
single  rule,  and  if  the  persons  who  have  a  share  in  the 
making  of  law  are  of  equal  importance,  a  choice  be- 
tween the  different  possible  rules  can  be  made  only 
with  reference  to  the  number  of  persons  who  assent  to 
each.  But  if  numbers  must  decide,  this  leads  of  itself 
to  the  acceptance  of  the  rule  approved  by  the  majority, 
because  the  fact  that  it  is  accepted  by  the  majority 
shows  that  it  possesses  a  higher  value  than  any  other 
rule.  II  this  be  kept  in  mind,  it  is  clear  that  the  key  to 
the  rulership  of  customary  law,  even  for  those  who 
entertain  a  different  conviction  as  to  what  is  right,  lies 
in  the  fact  that  the  legal  value  of  having  a  single  rule 
justifies  such  rulership.  Tnose  who  would  prefer  io  be 
"governed  by  a  dillei'e'lU  1  l!rte"~caimot  act  according  to 
their  preference.  Even  according  to  their  own  sense  of 
right,  it  is  more  important  to  have  a  single  rule  in  the 
""community  to  which  they  belong  than  to  have  the  rule 
~"~*which"th'ey  preler.  Consequently,  for  those  whose  con- 
victions accord  with  the  rule,  the  obligation  to  obey 
the  customary  law  rests  upon  the  value  of  the  content  of 
the  rule ;  for  all  others  it  is  based  upon  the  value  of 
SnrpTfl^*  ^"tffa  *"k  ThrenTpan<;  that  that  rule  must  be 
accepted  "~as~Dincling  which  is  proved  to  have  quantita- 
tively the  highest  legal  value.  The  higher  value  in  this 
case  is  determined  quantitatively  and  a  rule  of  custom- 
ary law  is  present  as  soon  as  it  is  supported  by  the 


76  THE   MODERN    IDEA  OF  THE   STATE 

sense  of  right  of  a  majority.  For  the  existence  of  custom- 
ary law  it  makes  no  difference  whatever  who  the  per- 
sons are  whose  sense  of  right  has  contributed  to  the 
making  ot  the  law. 

The  same  thing  naturally  holds  good  for  statutory 
law  also.  Where  there  is  a  representative  assembly,  the 
sense  of  right  of  each  of  its  members  has  an  equal  value 
in  law-making.  Here  also  the  rule  approved  by  the 
majority,  as  that  which  possesses  quantitatively  the 
highest  legal  value,  becomes  the  rule  of  the  community. 

This  natural  justification  of  the  legal  force  of  a  rule 
approved  by  a  majority  is  opposed  by  those  provisions 
which  require  more  than  a  majority  to  change  certain 
rules  of  positive  law.  Many  constitutions  require  for 
their  amendment  the  assent  of  more  than  a  majority 
of  the  members  of  parliament,  sometimes  two- thirds 
or  three-fourths.  Such  provisions  have  no  legal  value ; 
they  are  not  rules  of  law  and  so  are  not  binding.  If  a 
simple  majority  has  expressed  itself  in  favor  of  a  cer- 
tain change  in  the  law,  the  law  as  it  stands  is  thereby 
condemned.  Since  the  new  law  can  be  made  effective 
only  by  more  than  a  majority,  the  law  of  a  minority 
will  be  kept  in  force.  That  is,  the  higher  legal  value  will 
be  sacrificed  to  the  lower,  which,  if  the  equal  import- 
ance of  all  members  of  parliament  be  admitted,  not 
only  clearly  contradicts  this  principle  of  equality  but 
also  weakens  the  law  as  a  rule  of  the  community.  For 
it  is  precisely  because  the  law  is  the  rule  of  the  com- 
munity that  it  is  necessary  to  have  a  single  rule.  By 
departing  from  the  system  of  a  simple  majority  more 
than  one  rule  may  be  established,  since  in  the  nature 


THE   BASIS   OF  THE   BINDING   FORCE   OF  LAW      77 

of  the  case  a  number  may  contain  more  than  one  minor- 
ity. The  strongest  law  is  undoubtedly  that  rule  whose 
content  is  approved  by  the  entire  membership  of  the 
legislative  organ.  In  proportion  as  one  approaches  the 
simple  majority,  the  legal  value  of  the  rule  will  be 
determined  more  and  more  by  the  value  of  having  a 
single  rule,  until  the  simple  majority  is  passed.  Beyond 
that  point  the  whole  legal  value  of  having  a  single  legal 
rule  is  lost  (to  be  sure  this  does  not  affect  the  total  value 
attaching  to  the  content  of  the  rule)  and  therefore  the 
rule  has  necessarily  lost  the  character  of  a  rule  of  law. 
But  this  will  invariably  happen  in  the  case  of  constitu- 
tional amendments  for  which  more  than  a  majority  is 
required,  if  the  existing  law  remains  in  force  for  lack 
of  the  larger  majority,  though  a  simple  majority  is 
opposed  to  the  existing  law.  The  maintenance  of  the 
existing  rules  means  only  that  they  will  continue  to  be 
obeyed,  not  that  they  are  really  rules  of  law  and  there- 
fore ought  to  be  obeyed. 

To  sum  up,  then,  we  may  say  that  while  the  concept 
of  law  is  defined  on  the  one  hand  by  the  relation  of  the 
rule  to  men's  sense  of  right,  on  the  other  hand  its  char- 
acter is  governed  by  its  relation  to  the  communal  life. 
If  the  law  is  divorced  from  men's  sense  of  right,  it  loses 
its  character  as  law  and  its  rulership  is  at  an  end.  If  the 
law  is  divorced  from  the  interest  of  having  a  commu- 
nity, its  rules  cease  also  to  be  rules  of  law.  It  may 
indeed  be  a  very  valuable  rule  but  it  belongs  to  another 
realm  than  that  of  law.  We  cannot  speak  of  a  sense  of 
right  without  taking  account  of  the  realm  in  which  it 
ought  to  be  valid.  The  sense  of  right  has  its  own  sub- 


78  THE   MODERN   IDEA  OF  THE    STATE 

ject  matter  to  evaluate.  As  logic  governs  thought,  so 
the  sense  of  right  govern^ 


And  with  reference  to  this  particular  object,  it  is  more 
important  that  there  should  be  a  single  rule  than  that 
the  rule  should  have  a  particular  content.  Since  there 
cannot  be  a  single  rule  except  by  recognizing  the  prin- 
ciple of  the  majority,  the  communal  life,  which  con- 
trols our  consciousness  and  makes  the  sense  of  right 
effective  in  us,  carries  with  it  the  obligation  to  govern 
our  conduct  according  to  the  rule  approved  by  the 
majority. 

IX.  Criticism  of  Objections  to  the  Majority  Principle. 
The  principle  of  majority  rule  offers  a  point  of  attack 
to  opponents.  To  some  it  appears  unreasonable  that 

/  the  decision  between  right  and  wrong  is  made  to  de- 
pend upon  numbers.  Again,  it  is  objected  that  an 
ordered  community  is  constructed  from  an  "anarch- 

'  *      ical"  material,  the  individual  sense  of  right.  Some- 

J  times  we  are  reminded  that  the  decision  of  a  "moment- 
»  ary  majority"  may  be  dictated  by  "sheer  illusion." 
Finally  the  theory  has  been  declared  to  be  nothing 
more  than  a  repetition  of  Rousseau's  futile  distinction 
between  the  "general  will"  and  the  "will  of  all."  It 
would  seem  as  if  this  were  enough  to  condemn  a  theory 
which  regards  the  will  of  the  majority  as  law. 

We  open  the  Dutch  Constitution  and  read  in  Arti- 
cle 106:  "In  all  votes  upon  ordinary  measures  a  simple 
majority  decides."  Is  this  then  a  mistake?  But  it  is  a 
mistake  which  is  repeated  in  all  constitutions.  The  evil 
is  therefore  very  wide-spread,  and  this  makes  it  the 


THE   BASIS   OF  THE   BINDING   FORCE   OF  LAW      79 

more  important  to  understand  how  the  simple  explana- 
tion offered  here  should  have  remained  so  long  unper- 
ceived  in  this  country  and  elsewhere.  We  suspect  that 
it  is  not  perceived  merely  because  law-making  by  the 
simple  majority  is  inevitable.  The  denial  of  this  univer- 
sally valid  rule  rests  on  a  complete  misunderstanding 
of  the  facts.  The  only  thing  that  science  can  do  in  this 
case  is  to  explain  the  rule  and  show  why  it  is  inevitable. 
This  may  be  done  without  special  reference  to  the  prob- 
lem of  law-making,  in  which  case  the  question  is 
purely  psychological.  Or,  on  the  other  hand,  the  expla- 
nation may  deal  especially  with  law-making,  in  which 
case  the  question  to  be  answered  is ;  How  can  a  decision 
by  the  majority  give  rise  to  binding  laws  if  their  bind- 
ing force  is  derived  from  the  individual  sense  of  right  ? 
The  psychological  explanation  is  to  be  found  in  the 
analogyVith  the  subjective  process  of  making  a  volun- 
tary choice.  If  we  are  considering  the  attainment  of  a 
particular  purpose,  we  try  to  evaluate  the  effects  which 
the  realization  of  this  purpose  will  have  upon  our 
life.  Some  of  these  effects  will  agree  with  our  in- 
clinations while  others  will  run  contrary  to  them.  But 
we  cannot  keep  on  forever  tracing  out  these  effects  and 
evaluating  them.  We  are  practical  as  well  as  specula- 
tive beings.  Some  time  or  other  we  have  to  cut  the 
process  short,  and  the  end  to  be  realized  either  becomes 
an  object  of  our  will  or  not,  according  as  the  feelings 
which  impel  us  to  action  are  stronger  or  weaker  than 
those  which  deter  us.  Even  the  smallest  balance  on  the 
one  side  or  the  other  determines  our  action.  This  is  a 
psychological  necessity  from  which  there  is  no  escape. 


80  THE   MODERN   IDEA  OF  THE   STATE 

Therefore  the  moment  when  reflection  comes  to  an  end 
is  of  the  highest  importance.  According  to  the  relation 
in  which  the  purpose  to  be  achieved  then  stands  to  our 
inclinations,  our  will  has  one  content  or  another.  Con- 
sequently we  nearly  always  suffer  more  or  less  from 
the  effects  of  such  a  decision,  for  certain  sides  of  our 
personality  will  be  injured  by  it.  The  complexity  of  our 
lives  forces  us  to  submit  to  this  tragedy.  The  less  com- 
plex human  nature  is,  as  among  immature  individuals 
or  peoples,  the  less  frequently  do  these  causes  of  un- 
happiness  and  dissatisfaction  occur.  As  the  differentia- 
tion of  personality  progresses,  however,  the  conflicts 
increase  and  the  decisions  become  more  difficult,  until 
we  become  masters  of  this  complexity  by  subor- 
dinating our  whole  lives  to  the  realization  of  specific 
valuable  ends. 

The  same  thing  happens  when  a  group  of  men  have 
a  definite  task  to  perform.  To  reach  their  goal  ends 
must  be  realized  and  decisions  made  in  regard  to  which 
individual  members  of  the  group  may  have  different 
opinions.  The  validity  of  the  majority  principle,  as  a 
way  of  arriving  at  a  conclusion,  is  just  as  natural  in 
the  group  as  it  is  in  the  subjective  process  by  which  a 
voluntary  choice  is  made  in  favor  of  or  against  a  deci- 
sion. There  is  no  other  way  in  which  we  can  unify  the 
multiplicity  of  opinions.  Only  by  decreasing  or  remov- 
ing this  multiplicity  can  one  avoid  the  use  of  this 
rough  and  ready  method. 

In  fact ,  the  way  to  freedom  lies  precisely  in  the  de- 
crease, or  perhaps  the  removal,  of  multiplicity  in  every 
group.  This  may  be  accomplished  either  from  within 


THE    BASIS   OF  THE   BINDING   FORCE   OF   LAW       81 

or  from  without.  It  is  achieved  from  within  when  par- 
ticular parts  of  the  group  are  brought  together  in  be- 
half of  a  definite  principle  to  which  all  decisions  are 
subordinated.  In  political  assemblages  the  party  sys- 
tem offers  an  example  of  this  way  of  eliminating  mul- 
tiplicity. It  should  not  be  forgotten,  however,  that  by 
this  method  a  certain  part  of  our  individuality  is  al- 
ways lost  and  therefore  the  mental  life  is  shackled, 
even  though  this  is  done  voluntarily.  Multiplicity  can 
be  diminished  from  the  outside  if  the  groups  are  formed 
of  persons  well  versed  in  the  matter  to  be  decided.  By 
agreement  upon  matters  of  fact  the  divergence  of  judg- 
ment and  valuation  is  diminished  and  the  drastic 
method  of  deciding  by  a  bare  majority  need  be  used 
only  seldom  if  at  all.  This  consideration  supports  the  re- 
commendation for  the  decentralization  of  law-making. 
This  brings  us  to  the  explanation  of  the  majority 
principle  specifically  in  law-making,  that  is,  in  relation 
to  the  sense  of  right,  which  we  have  adopted  as  the 
basis  for  the  validity  of  law.  We  found  this  expla- 
nation in  the  fundamental  value  of  having  a  single  rule, 
which  is  greater  than  the  value  attaching  to  the  con- 
tent of  the  rule.  This  formulation  of  the  significance  of 
the  majority  principle  in  the  field  of  law  is  very  closely 
related  to  the  view  presented  above  of  the  subjective 
process  of  making  a  voluntary  choice.  Just  as  we  are 
compelled  by  duty  or  force  of  circumstances  to  reduce 
our  diffused  life  to  a  unity,  so  the  task  of  a  body  de- 
voted to  law-making  includes  the  requirement  of  provid- 
ing a  single  rule  for  the  community  which  it  serves. 
The  majority  principle  is  the  indispensable  condition 

The  modern  idea  of  the  State.  6 


82  THE    MODERN    IDEA   OF   THE    STATE 

of  fulfilling  this  requirement.  In  so  far  as  multiplicity 
of  judgment  cannot  be  set  aside  by  one  of  the  means 
mentioned  above,  the  application  of  the  mechanical 
principle  of  the  majority  is  a  legal  necessity,  because 
it  follows  from  the  fact  that  the  law  is  a  means  of  estab- 
lishing order  in  the  community.  In  this  function  lies 
the  primary  meaning  of  law.  Our  sense  of  right  ex- 
presses itself  first  and  foremosfTn  the  value  v^flldJ  we 
attribute  to  order  in  the  community,  whatever  the  con- 


tent  of  this  order  may  be,  and  order  is  impossible  un- 
less there  is  a  single  rule.  Hence  the  majority  principle, 
without  which  this  can  never  be  brought  about,  must 
be  accepted  as  a  legal  necessity,  a  postulate  of  our 
>nse  of  right. 


But  it  must  not  be  forgotten  that  a  law  is  insecurely 
founded  if,  for  a  strong  minority,  it  possesses  value  only 
as  a  means  of  order  and  if  its  content  does  not  sat- 
isfy their  sense  of  right.  In  such  a  case  voluntary 
obedience  and  the  spontaneous  operation  of  the  legal 
system  may  be  seriously  endangered.  If  this  happens 
the  law  loses  its  significance  as  a  spiritual  force.  When 
the  majority  principle  is  stretched  to  its  limit  and  only 
a  bare  majority  is  satisfied  with  the  content  of  the  law, 
this  principle  fulfils  the  idea  of  right  in  an  almost 
purely  formal  sense.  In  proportion  as  the  majority  in- 
creases, law  gains  in  strength  by  virtue  of  the  increase  of 
its  inner  value.  Since  we  must  aim  at  the  increase  of 
such  inner  value,  legislation  must  be  directed  to 
making  a  law  which  conforms  entirely  to  thejolsa^of- 
justice,  as  this  is  expressed  in  the  common  judgment 
as  to  what  is  right. 


THE   BASIS   OF  THE   BINDING   FORCE   OF  LAW      83 

X.  The  Individual  Sense  of  Right.  After  this  explana- 
tion of  the  proper  place  of  the  majority  principle  in  law- 
making  and  of  the  place  accorded  it  in  practice,  the 
objections  urged  against  the  principle  will  scarcely 
cause  us  further  uneasiness.  It  has  been  said  that  if  we 
seek  the  basis  of  the  legal  order  in  the  individual  sense 
of  right,  the  ordered  community  would  be  constructed 
from  an  anarchical  material.  The  individual  sense  of 
right  an  anarchical  material!  The  sense  of  right  is  a 
part  of  the  human  mind,  and  what  other  minds  are 
there  except  those  of  individual  men  to  take  into  ac- 
count ?  All  the  treasures  of  the  spiritual  life  are  brought 
together  in  the  individual  mind  and  only  there  can  we 
observe  this  spiritual  life.  Only  our  own  conscious  life 
is  given  to  us  in  immediate  experience,  but  when  we 
consider  the  phenomena  in  which  the  conscious  lives  of 
others  manifest  themselves,  we  can  form  some  idea  of 
these  also.  And  this  immediate  and  mediate  experience 
contradicts  decisively  the  proposition  that  the  sense  of 
right  works  according  to  different  standards  in  each 
individual. 

There  is  another  line  of  argument  which,  like  the  pre- 
ceding, betrays  a  neglec  t  of  psychology.  For  how  else 
can  we  explain  the  objection  that  this  theory  starts 
from  an  "absolute  individualism,"  instead  of  taking 
account  of  the  fact  that,  "Nature  has  its  eternal  laws 
which  are  independent  not  only  of  the  free  will  but 
also  of  the  acceptance  and  approval  of  men  and  which 
govern  their  wills?"  The  theory,  it  is  asserted,  does 
not  recognize  "determination  by  objective  norms."  In 
this  criticism  we  can  see  only  a  misuse  of  words.  One 


84  THE   MODERN   IDEA  OF  THE   STATE 

could  speak  of  an  "absolute  individualism"  only  if,  as 
the  School  of  Natural  Rights  assumed,  the  state  arose 
for  the  preservation  of  individual  interests  and  found 
its  sole  mission  in  caring  for  them.  But  is  it  still  neces- 
sary to  refute  such  a  notion  as  this  ?  The  further  we  go 
back  in  the  history  of  civilization  the  more  human 
nature  is  restricted  on  all  sides,  until  the  individual 
disappears  completely  and  the  life  of  the  group  is  dom- 
inant. From  the  historical  point  of  view  at  least  it  is 
impossible  to  speak  of  basing  the  community  upon  the 
individual.  If  determination  by  the  community  is  the 
natural  state  of  man  and  all  men  are  born  into  an  estab- 
lished community,  how  can  we  avoid  assuming  that 
consciousness  will  be  saturated  with  the  notion  of  the 
community?  Where,  then,  are  we  to  find  a  conscious- 
ness filled  exclusively  with  individual  interests?  It  is 
folly,  therefore,  to  charge  a  political  theory  with  "abso- 
lute individualism"  because  it  starts  from  the  individ- 
ual consciousness.  If  the  notion  of  the  community  is 
something  which  cannot  be  rooted  out  of  this  con- 
sciousness, absolute  individualism  can  be  neither  the 
beginning  nor  the  end  of  such  a  theory.  In  the  case  of 
the  theory  we  are  defending  the  criticism  is  even  less 
appropriate,  since  from  the  general  consciousness  it 
selects  the  conception  of  right  for  special  emphasis^ 
must  therefore  regard  the  community  rather  than  the 
indivictual  as  primary.  If  the  sense  of  right  be  taken 
as  the  source  of  law  and  therefore  of  authority,  the 
community  rather  than  the  individual  is  necessarily 
taken  as  the  point  of  departure. 

If,  however,  this  objection  means  merely  that  the 


THE   BASIS   OF  THE   BINDING   FORCE  OF  LAW       85 

theory  denies  "determination  by  objective  norms,"  the 
critic  is  on  the  wrong  track  entirely.  For  what  appears 
in  our  minds  as  the  sense  of  duty  has  objective  value. 
In  other  words,  it  is  quite  withdrawn  from  arbitrary 
choice.  What  results  from  the  working  of  the  sense  of 
duty  has  none  of  the  marks  which  characterize  a  merely 
subjective  estimation  of  value.  The  objective  character 
of  the  rule  of  law  is  directly  implied  in  the  fact  that 
there  is  a  standard  in  us  which  operates  objectively. 
It  is  urged  on  the  other  hand,  however,  that  we 
should  have  sought  for  rules  whose  content  had  an  ob- 
jective value,  and  not  merely  for  an  internal  standard 
which  has  objective  value.  We  have  already  seen  what 
sort  of  rules  are  assumed  to  have  such  an  objectively 
valid  content,  when  we  answered  the  criticism  that 
our  theory  does  not  take  account  of  the  "ultimate  des- 
tiny of  human  life"  or  of  the  "historical  mission  of  a 
nation."  We  are  quite  unable  to  see  how  these  formulae 
aid  in  explaining  the  origin  of  positive  law.  If  anyone 
does  see,  he  should  explain  it.  To  us,  and  perhaps  to 
many  others,  this  is  mysticism.  We  cannot  make  a  be- 
ginning in  this  way,  any  more  than  we  can  by  means  of 
the  rationalist  formulae  of  the  School  of  Natural  Rights 
in  which,  for  example,  the  "perfection  of  humanity" 
is  set  up  as  an  ultimate  standard.  If  we  will  not  rely  on 
the  pronouncements  of  the  sense  of  right,  we  fall  back 
upon  the  old  law  of  nature,  as  is  still  seriously  proposed 
by  Catholic  scholars.  Thus  we  must  start  by  setting  up 
a  few  fundamental  rules  and  then  derive  from  these  by 
means  of  logic  all  the  legal  obligations  which  men  must 
observe.  Perhaps  this  is  the  method  our  opponents 


86  THE    MODERN   IDEA  OF  THE   STATE 

have  in  mind.  But  it  lacks  precisely  what  is  the  chief 
feature  in  the  theoryof  legal  sovereignty,  viz.,  an  ulti- 
mate judgment  with  regard  to  the  binding  force  of  the 
duties  thus  deduced.  The  fact  that  one  rule  can  thus  be 
deduced  from  another  (perhaps  even  from  a  funda- 
mental rule)  is  not  decisive  with  reference  to  its  bind- 
ing force,  for  logic  is  decisive  only  in  its  own  domain. 
The  correctness  of  the  deduction  may  be  logically  unas- 
sailable, but  in  law  as  in  ethics  it  does  not  carry  with 
it  an  obligation  to  act  according  to  the  rule  deduced. 
^An  obligation  can  arise  only  when  a  feeling  of  duty 
exists  "in  the  human  mind.  Here  we  find  two  possibil- 
ities. The  content  of  such  a  feeling  of  duty  may  be 
revealed  by  God.  Whoever  believes  in  such  a  revela- 
tion is  at  least  provided  with  a  certain  number  of  rules 
whose  content  is  objectively  established.  Those  who  do 
not  believe  in  revelation  lack  such  rules  and  are  there- 
fore restricted  to  the  obligations  which  the  sense  of 
duty  for  the  time  being  imposes.  Here  too,  however, 
we  are  confronted  by  a  force  to  which  we  feel  ourselves 
subject  and  which  therefore  has  an  objective  value  in 
our  lives.  The  only  difference  between  the  two  cases 
lies  in  the  distinction  between  objectivity  of  content  and 
objectivity  of  criterion.  For  those  who  believe  in  rev- 
elation, a  certain  number  of  rules,  to  be  found  in  the 
Bible  or  in  the  commands  of  the  Church,  are  estab- 
lished a  priori.  Whoever  does  not  accept  these  author- 
ities must  reflect  upon  what  experience  teaches  con- 
cerning the  criterion  applied  in  judgments  of  right.  But 
he  can  get  no  farther  than  a  knowledge  of  this  criterion. 
And  in  case  the  criterion  thus  discovered  does  not  suffice, 


THE   BASIS  OF  THE   BINDING   FORCE   OF  LAW      87 

the  feeling  of  duty  directly  and  immediately  decides 
what  ought  to  be  done  or  omitted.  Especially  where 
unwritten  law  must  be  applied  it  is  this  immediate, 
intuitive  operation  of  our  feeling  or  sense  of  right  which 
makes  the  decision.  In  all  cases,  however,  where  we  di- 
rectly express  judgments  of  right  or  express  them  indi- 
rectly on  the  basis  of  experience,  these  judgments  have 
their  roots  in  a  mental  order  in  which  arbitrary  choice  has 
no  place.  We  can  therefore  maintain  our  position  without 
qualification  and  adhere  to  the  objectivity  of  the  basis 
of  law  which  we  have  found  in  our  sense  of  right.  Hence 
the  theory  of  legal  sovereignty  recognizes  very  def- 
initely "objective  standards  of  value,"  but  only  in  the 
sense  that  this  objectivity  is  to  be  found  not  in  an 
unchangeable  and  eternal  content  but  in  the  source 
from  which  the  rules  derive  their  legal  character. 

XI.  The  Quality  of  the  Sense  of  Right.  But  must  not 
the  quality  of  the  sense  of  right  be  taken  into  account  ? 
There  can  be  no  doubt  that  this  question  is  to  be 
answered  affirmatively.  And  in  fact  quality  is  taken  into 
account,  though  in  a  wholly  insufficient  degree,  as  we 
shah1  see.  But  we  must  first  consider  what  is  meant  by 
the  quality  of  the  sense  of  right.  If  it  means  that  in 
every  man  there  exists  a  particular  mental  reaction  and 
that,  according  as  this  reaction  follows  one  course  or 
another,  the  quality  of  his  sense  of  right  is  to  be  rated 
as  higher  or  lower,  this  view  is  to  be  rejected  at  the  out- 
set most  positively.  Kranenburg  has  tried  repeatedly 
to  impress  upon  jurists  a  fact  which  he  has  illustrated 
from  experience,  namely,  that  the  individual  sense  of 


88  THE    MODERN    IDEA   OF  THE   STATE 

right  operates  according  to  common  fixed  laws,  though 
its  operation  may  be  disturbed  or  modified  by  many 
influences.  As  he  remarks,1)  "The  actual  circumstances 
under  which  the  rule  [of  the  sense  of  right]  operates 
are  so  different  in  different  stages  of  development  that 
positive  law  also  must  necessarily  vary."  The  sense  of 
right,  therefore,  does  not  vary  in  different  individuals 
because  each  one  has  his  own  standard  and  criterion 
to  apply,  but  because  the  normal  functioning  of  the 
sense  of  right  which  is  the  same  in  every  one  is  dis- 
turbed in  so  many  different  ways.  If  this  disturbance 
could  be  prevented,  the  operation  of  the  sense  of  right 
would  lead  to  the  same  results  in  every  one. 

By  the  higher  or  lower  quality  of  the  sense  of  right 
we  can  mean,  therefore,  only  the  greater  or  less  possi- 
bility of  disturbing  its  operation.  It  is  from  this  point 
of  view  primarily  that  we  have  to  determine  and  crit- 
icise the  exclusion  of  certain  persons  from  a  share  in 
law-making.  It  follows  that  exclusion  by  means  of  suf- 
frage qualifications  must  be  based  only  upon  natural 
qualities  which  interfere  with  the  operation  of  the  sense 
of  right,  such  as  youth  or  insanity.  Exclusion  must  not 
be  based  upon  defects  which,  like  poverty,  are  a  result 
of  the  existing  legal  system.  For  this  would  give  effect 
to  those  derangements  of  the  sense  of  right  produced 
by  the  interests  of  the  propertied  class  but  not  to  those 
produced  by  the  interests  of  persons  who  have  no  prop- 
erty. Legislation  ought,  however,  to  give  equal  weight 
to  the  interests  of  both  classes. 

Far  greater  importance  attaches  to  differences  in  the 

*)  Positiefrecht  en  rechtsbewustzijn,  1912. 


THE   BASIS   OF  THE   BINDING  FORCE   OF  LAW      89 

sense  of  right  resulting  from  a  greater  or  less  knowledge 
of  the  interests  to  be  provided  for  by  legislation.  This  is 
the  field  in  which  the  quality  of  the  sense  of  right  makes 
a  real  difference,  or  at  least  ought  to  do  so.  So  far 
as  concerns  the  individual  who  is  to  express  a  judgment 
of  right,  all  that  is  needed  to  entitle  him  to  a  share  in 
law-making  is  that  his  mentality  should  be  deemed 
normal  within  the  limits  established  for  the  time  being. 
So  far  as  concerns  the  object  on  which  his  judgment  is 
to  be  exercised,  however,  a  higher  qualification  must 
be  established.  For  the  proposition  that  the  sense  of 
right  of  every  normal  person  ought  to  have  a  share 
in  law-making  does  not  mean  that  every  one  ought  to 
pass  judgment  on  the  legal  value  of  all  the  interests 
of  the  community.  A  knowledge  of  the  interests  involved 
is  also  needed.  The  sense  of  right  cannot  be  required 
to  pass  judgment  upon  the  legal  value  of  interests 
which  are  not  present  to  consciousness  or  which  oc- 
cupy a  very  small  part  of  it.  The  objection  which  can 
be  brought  against  the  existing  legislative  organization 
lies  in  the  fact  that  men  are  called  upon  to  legislate  for 
interests  that  lie  beyond  their  intellectual  horizon. 
When  legislation  is  concentrated  in  a  few  organs,  the 
legislator  is  forced  to  pass  judgment  upon  the  legal 
requirements  of  many  interests  which  he  does  not 
understand  or  understands  only  slightly.  The  share 
which  each  person's  sense  of  right  shall  have  in  law- 
making  is  to  be  determined  by  the  interests  for  which 
the  legislation  takes  place.  That  is,  the  degree  of  the 
legislator's  knowledge  of  an  interest  must  determine 
whether  and  how  far  his  sense  of  right  is  to  be  made 


90  THE   MODERN   IDEA  OF  THE   STATE 

effective  over  that  interest.  No  person  who  is  mentally 
normal  should  be  excluded  from  the  possibility  of  giv- 
ing effect  to  his  convictions  as  to  what  is  right,  but 
this  possibility  should  be  limited  to  a  share  in  such 
law-making  as  he  is  competent  to  undertake.  And  un- 
der no  circumstances  can  he  be  competent  to  do  more 
than  influence  such  law-making  as  determines  the  legal 
value  of  interests  which  lie  within  the  circle  of  his 
experience  and  knowledge.  This  result  cannot  be 
achieved,  however,  unless  the  organization  of  legislation 
is  developed  very  much  farther  than  has  been  done  up  to 
the  present  time.  A  much  m(ra  complete  decentraliza- 
tion  than  we  now  have  is  a  direct  implication  of  the 
modern  idea  of  the  state,  in  so  far  as  this  theory  derives 
all  authority  from  the  operation  of  the  sense  of  right. 
We  shall  deal  with  this  point  more  in  detail  hereafter. 
A  limitation  of  its  sphere  of  activity  is  absolutely  neces- 
sary to  enable  the  sense  of  right  to  reach  the  limits  of 
its  real  power.  Its  natural  limits  are  set  by  the  inter- 
ests which  the  legislator  can  grasp  and  understand. 
If,  then,  for  different  groups  in  the  community  we  can 
approximately  ascertain  the  interests  in  an  under- 
standing of  which  the  strength  of  the  group  consists, 
and  if  we  can  then  organize  these  groups  as  law-making 
associations,  the  popular  sense  of  right  will  for  the  first 
time  have  attained  a  qualitative  organization. 

The  qualitative  sense  of  right  which  the  represent- 
ative system  seeks  to  establish  and  whose  operation 
is  seen  in  the  making  of  statutory  law  is  of  quite  a 
different  sort.  To  this  subject  a  separate  section  will 
be  devoted. 


THE   BASIS  OF  THE   BINDING   FORCE   OF  LAW       91 

XII.  The  Making  of  Statutory  Law.  The  making  of 
statutory  law  in  most  civilized  states  originates  in  the 
operation  of  the  sense  of  right  of  that  part  of  the  popu- 
lation which  is  permitted  to  exercise  the  electoral 
franchise.  In  what  does  this  operation  consist? 

Legislation  produced  by  the  exercise  of  the  fran- 
chise may  be  of  two  sorts:  The  electors  may  express 
their  judgment  with  regard  to  the  content  of  rules  of 
law  or  they  may  decide  only  upon  the  standard  by 
which  the  legal  value  of  rules  is  to  be  determined.  In 
granting  the  suffrage  it  is  the  latter  which  is  chiefly 
aimed  at,  that  is,  the  establishment  of  a  standard. 
This  takes  place  by  designating  certain  persons  by 
whose  sense  of  right  rules  are  to  be  tested,  other  per- 
sons being  excluded.  The  exercise  of  the  suffrage  effects 
a  selection  among  the  citizenship  and  the  elector's  sense 
of  right  has  no  effect  upon  legislation  beyond  making 
this  selection.  A  capacity  to  do  this  is  the  determining 
consideration  in  granting  the  franchise.  This  marks  the 
beginning  of  an  organization  of  legislation  and  con- 
sequently every  one  can  be  included  in  this  organiza- 
tion whose  sense  of  right  is  competent  to  perform  this 
process  of  selection.  Any  one  who  possesses  such  a  sense 
of  right  ought  to  be  given  a  share  in  this  process,  for 
the  ethical  force  as  well  as  the  validity  of  the  law  postu- 
lates this. 

But  no  one  in  the  world  can  control  the  working  of 
the  sense  of  right.  Its  operation  may  be  organized,  as 
is  done  in  settling  the  franchise.  But  to  what  extent 
the  elector's  sense  of  right  may  express  itself  the  legis- 
lator cannot  determine.  Thus  it  happens  that  the  elec- 


92  THE   MODERN   IDEA  OF  THE   STATE 

tors,  in  choosing  members  of  parliament,  express  their 
views  about  the  main  points  of  public  administration 
and  choose  candidates  because  they  agree  with  these 
policies.  The  prohibitions  in  most  constitutions  against 
mandates  and  instructions  are  futile  and  ineffective. 
The  electors  can  thus  use  the  franchise  to  express  their 
views  concerning  the  content  of  rules  of  law.  And  in  so 
far  as  they  do  so  their  representatives  are  no  longer  free 
with  reference  to  the  bills  in  which  such  principles  have 
been  embodied.  The  authority  of  the  representative  lies 
in  the  value  which  his  sense  of  right  possesses  in  the  mak- 
ing of  rules  and  this  value  is  borrowed  from  the  legal 
convictions  of  a  majority  of  the  electors.  These  legal  con- 
victions ought  to  be  taken  into  account  so  far  as  they 
have  made  themselves  manifest.  For  it  should  not  be 
forgotten  that  according  to  the  modern  idea  of  the  state 
the  electors'  sense  of  right  furnishes  the  ground  of  their 
right  to  the  franchise  and  this  sense  of  right  is  the  basis 
of  the  binding  force  of  the  statute.  This  sense  of  right 
should  therefore  continue  to  act  in  the  person  whom 
they  elect,  in  so  far  as  he  has  been  chosen  on  account  of 
his  political  opinions  about  specific  parts  of  the  law. 
It  is  not  to  be  inferred  from  this  view  that  after  a 
person  has  been  elected  he  ought  continually  to  hold 
conferences  with  his  constituents.  To  be  sure,  the  im- 
portance of  the  vote  cast  by  a  member  of  parliament 
upon  a  bill  depends  upon  the  legislative  value  which 
his  sense  of  right  can  claim  because  of  his  election.  But 
excepting  the  few  main  points  of  legislation  upon  which 
the  electors  have  expressed  themselves  in  exercising 
their  franchise,  there  is  no  direct  connection  between 


THE   BASIS   OF   THE    BINDING   FORCE   OF  LAW       93 

the  elector  and  the  authority  of  the  statute  passed  by 
the  vote  of  the  deputy.  Hundreds  of  times  the  deputy 
votes  upon  rules  which  the  electors  did  not  and  could 
not  have  had  in  mind.  In  such  cases  the  exercise  of  the 
franchise  does  not  settle  anything  objectively  concern- 
ing the  rules;  it  determines  something  merely  subjec- 
tively. That  is,  it  indicates  what  sense  of  right  is  to 
pass  upon  the  legal  value  of  the  rules.  If  this  is  the  case, 
the  deputy  cannot  accept  any  sense  of  right  as  a  stand- 
ard except  his  own,  not  even  that  of  his  constituents. 
The  term  "representative"  leads  to  misunderstanding. 
The  deputy  can  represent  his  constituents'  sense  of 
right  only  in  respect  to  the  few  main  points  which  were 
issues  in  the  election.  So  far  as  concerns  all  other  points 
he  knows  nothing  of  his  constituents'  sense  of  right.  He 
is  a  representative  only  in  a  small  and  strictly  limited 
field  of  legislation.  Outside  this  he  represents  nothing 
and  must  depend  solely  upon  his  own  sense  of  right. 
For  it  is  his  own  sense  of  right  and  not  the  more  or  less 
conjectural  legal  convictions  of  the  electors  which  pos- 
sesses the  value  needed  to  give  a  rule  the  quality  of  law. 
A  deputy  who  keeps  himself  tied  to  his  constituents' 
leading-strings  mistakes  the  meaning  of  the  votes  that 
placed  him  in  office,  for  the  group  of  electors  to  whom 
he  owes  his  place  has  approved  his  and  no  other  sense 
of  right  as  the  standard  for  further  legislation.  As  a 
rule,  therefore,  in  exercising  the  franchise  normative 
force  is  merely  imputed  to  the  sense  of  right  of  particu- 
lar persons.  And  except  in  those  cases  where  a  referen- 
dum takes  place,  the  evaluations  arising  from  the  sense 
of  right  of  these  persons  has  final  significance  in  the 


94  THE   MODERN   IDEA  OF  THE   STATE 

making  of  statutory  law.  Consequently  the  independ- 
ence of  deputies  from  their  electors  must  not  be  under- 
mined because  the  law  is  to  be  regarded  as  a  rule  which 
is  given  legal  authority  through  its  acceptance  by  the 
sense  of  right.  For  if  this  independence  be  destroyed 
either  wholly  or  in  part,  the  decision  is  left  to  the  sense 
of  right  of  persons  other  than  those  whose  legal  convic- 
tions have  normative  force.  Thus  the  meaning  of  elec- 
tion is  falsified,  since  the  purpose  of  the  election  was  to 
select  a  sense  of  right. 

XIII.  Legislation  as  the  Operation  of  an  Organized 
Sense  of  Right.  If  then  one  seeks  the  binding  authority 
of  statutory  law  as  this  law  is  made  in  most  civilized 
states,  it  is  to  be  found  in  the  normative  force  attaching 
to  the  sense  of  right  of  the  members  of  legislative 
bodies,  which  in  turn  is  derived  from  the  sense  of  right  of 
the  electors.  The  sense  of  right  reached  by  this  selection 
is  on  an  altogether  different  footing  from  the  process 
of  selection  which  takes  place  in  hereditary  monarchy. 
The  latter  tries  to  arrive  at  a  highly  developed  sense  of 
right  by  means  of  descent  from  particular  families  whose 
ancestors  have  been  of  more  or  less  service  to  public 
interests.  In  this  case  the  selection  rests  on  biological 
factors,  on  the  inheritance  of  racial  characteristics,  and 
is  therefore  a  process  of  natural  selection.  As  we  now 
regard  law-making,  a  standard  obtained  in  this  way 
cannot  be  considered  a  satisfactory  security  for  the 
relation  between  statutory  law  and  the  popular  sense 
of  right.  Such  a  relation  must  exist  in  order  to  assure 
to  the  law  the  greatest  possible  inner  force  and  validity. 


THE   BASIS  OF  THE   BINDING   FORCE   OF  LAW      95 

A  rule  must  be  based  upon  the  sense  of  right  of  the 
members  of  the  community  if  the  order  under  which 
we  live  is  to  be  a  legal  order.  Upon  this  it  has  always 
been  based  more  or  less.  No  new  authority  originated 
with  the  introduction  of  the  representative  assembly 
and  the  granting  of  the  franchise.  The  principle  upon 
which  legal  authority  had  always  rested  was  merely 
organized.  The  sense  of  right  has  always  existed,  has 
always  made  its  activity  felt,  has  always  been  the  ba- 
sal principle  of  lawful  authority  under  all  forms  of  gov- 
ernment. But  the  constitutional  system  for  the  first 
time  opened  a  normal  channel  to  the  sense  of  right  in 
which  it  could  flow  regularly  and  continuously  and 
thus  form  a  secure  highway  for  the  communal  life. 

Before  the  era  of  constitutional  government  history 
was  a  succession  of  periods  each  marked  by  an  organiza- 
tion of  power,  a  caste  of  warriors  and  officials,  originat- 
ing historically  from  society,  which  exercised  author- 
ity and  maintained  among  the  people  the  belief  that  the 
organization  was  sovereign  "by  the  grace  of  God"  or  by 
virtue  of  the  "social  contract."  So  long  as  the  mind  had 
to  wear  this  yoke  of  traditional  dogma,  the  sense  of 
right  in  the  members  of  the  community  offered  resist- 
ance only  spasmodically.  It  manifested  itself  in  the 
written  and  spoken  word  and  sometimes  even  in  deeds, 
but  it  was  never  able  to  throw  off  the  rule  of  the  caste, 
because  it  lacked  organization  and  co-ordination.  Then 
this  organization  and  co-ordination  sprang  up  suddenly 
and  spontaneously  under  the  leadership  of  those  men 
who,  when  the  time  is  ripe,  are  never  sought  in  vain 
but  who  arise  of  themselves  to  weld  the  fragmentary 


96  THE   MODERN   IDEA  OF  THE    STATE 

conscious  life  of  the  masses  into  an  irresistible  authority. 
The  mind  was  confused  by  the  glitter  of  the  old  author- 
ity but  then  the  tide  receded.  The  insubstantial  struc- 
ture of  the  ancien  regime  fell  in  ruins.  Thus  opened  the 
period  at  the  beginning  of  which  we  still  stand,  when  it 
became  possible  for  the  rulership  of  law  to  develop. 
But  the  constitutional  system  is  connected  with  the 
institutions  of  the  ancien  regime.  Not  only  is  the  whole 
machinery  of  army  and  officials  retained,  —  this  could 
hardly  have  been  avoided,  —  but  this  machinery  is 
still  conceived  as  a  ruling  power,  as  the  authority  of 
the  state,  which  manifests  itself  according  to  Montes- 
quieu's theory  in  three  branches,  the  legislative,  the 
executive,  and  the  judicial  authority.  The  rise  of  the 
representative  assembly  is  interpreted  as  the  granting 
of  a  share  in  one  of  these  branches,  the  legislative 
authority.  Hence  the  representative  assembly  does  not 
assume  the  commanding  position  of  an  organ  of  law  but 
owes  its  power  rather  to  its  connection  with  the  state, 
while  the  governmental  organization  maintains  itself 
as  the  real  state.  An  element  originally  foreign  to  it,  the 
representative  assembly,  is  incorporated  in  it,  with  the 
result  that  the  importance  of  this  assembly  is  found  in 
its  position  in  the  state,  not  in  its  own  character  as  an 
organ  for  expressing  the  people's  legal  convictions. 

Step  by  step,  however,  this  character  comes  to  the 
front  and  thus  the  belief  gains  ground  that,  because  of 
its  origin  and  purpose,  real  authority  is  to  be  found  only 
in  the  representative  assembly.  It  is  no  longer  be- 
lieved to  reside  in  the  traditional  machinery  of  govern- 
ment which  for  centuries,  because  of  its  actual  prepon- 


THE   BASIS  OF  THE   BINDING   FORCE   OF   LAW      97 

derance,  had  exercised  the  ruling  power  and  both  in 
theory  and  in  practice  had  been  treated  and  revered 
and  established  as  "the  state." 

If,  however,  it  is  recognized  that  the  authority  of  the 
state  ought  to  be  primarily  an  ethical  power  and  not  a 
rulership  resting  upon  supremacy  secured  by  organi- 
zation, and  if  the  view  develops  that  this  ethical  power 
resides  only  in  men's  sense  of  right,  then  the  original 
idea  of  the  state  re-appears,  as  a  power  embodying 
only  a  spiritual  authority,  and  the  sovereignty  of  law  is 
again  revived.  On  the  other  hand,  the  various  powers 
formerly  attributed  to  the  state  assume  the  character 
of  products  of  law.  No  authority  can  belong  to  them 
except  as  it  is  derived  from  the  law. 

A  perception  of  this  truth  is  the  net  gain  from  the 
development  of  the  constitutional  system,  but  as  yet 
we  have  not  gone  much  beyond  this.  We  shall  have  to 
discuss  later  the  practical  realization  of  this  idea  of  the 
state,  but  even  here  emphasis  ought  to  be  placed  upon 
the  practical  problem  which  from  now  on  takes  preced- 
ence of  all  others.  This  is  the  problem  of  finding  ad- 
equate organs  to  express  the  conscious  life  of  men,  in 
so  far  as  this  is  manifested  in  a  sense  of  right.  Both 
quantitatively  and  qualitatively  this  organization  in 
all  countries  leaves  much  to  be  desired,  because  the 
leading  statesmen  are  not  yet  sufficiently  impressed 
with  the  importance  of  solving  the  problem  of  legisla- 
tion. The  popular  sense  of  right,  which  is  now  so  scat- 
tered and  disconnected,  must  be  gathered  together  and 
given  expression  in  more  numerous  organs  than  have 
hitherto  been  charged  with  the  making  of  law.  This  is 

The  modern  idea  of  the  State.  7 


98  THE    MODERN    IDEA  OF   THE    STATE 

a  problem  which  ought  to  receive  the  entire  attention 
of  all  governments.  But  besides  the  increase  in  the  num- 
ber of  agencies  for  law-making,  it  is  an  equally  impor- 
tant question  whether  existing  organs,  our  states  gen- 
eral, provincial  assemblies,  and  communal  boards,  are 
so  constituted  that  the  sense  of  right  of  the  entire  pop- 
ulation can  influence  their  composition.  And  it  is  also 
a  question  whether,  in  view  of  the  varying  qualities  of 
the  sense  of  right,  more  is  not  required  of  it  than  it  can 
properly  be  deemed  capable  of.  At  present  many  a 
citizen,  in  his  capacity  as  elector  or  member  of  a  repre- 
sentative body,  is  called  upon  to  make  legislative  de- 
cisions involving  evaluations  which  surpass  his  knowl- 
edge of  the  interests  affected  and  therefore  his  sense 
of  right.  On  the  other  hand,  it  may  also  happen  that 
a  more  highly  developed  sense  of  right  is  denied 
the  opportunity  to  exercise  its  full  influence  upon  legis- 
lation. 

Political  theory,  therefore,  should  concern  itself  pri- 
marily with  organizing  the  life  of  the  people  as  this  life 
is  expressed  in  legal  relationships.  This  is  likewise  the 
central  problem  for  jurisprudence  generally.  When 
these  two  sciences  unite  in  the  effort  to  solve  this  prob- 
lem, it  may  be  expected  that  the  modern  idea  of  the 
state,  which  is  still  in  swaddling  clothes,  will  reach  its 
full  growth  and  that  the  authority  of  law  will  attain 
its  full  validity  in  the  social  life. 

XIV.  Unwritten  Law.  A.  Content.  The  term  "unwrit- 
ten law"  indicates  a  rule  derived  from  the  operation  of 
the  sense  of  right  in  a  people,  when  there  are  no  definite 


THE   BASIS  OF  THE   BINDING   FORCE   OF  LAW      99 

organs  for  expressing  it.  Originally  the  idea  prevailed 
that  law  must  be  in  some  degree  tangible  and  fixed, 
since  it  was  insisted  that  law,  if  it  was  not  contained  in 
a  statute,  must  at  least  appear  as  custom.  This  view, 
however,  loses  sight  of  a  portion  of  the  law  which  is  act- 
ually enforced.  There  are  judgments  of  courts  and  ad- 
ministrative decisions  which,  without  resting  on  cus- 
tom, are  nevertheless  founded  upon  law.  Hence  inves- 
tigation reveals  an  extraordinarily  large  field  of  unwrit- 
ten law  which  is  still  not  customary  law.  Thus  the  basis 
of  law  becomes  still  more  remote.  No  one  is  content  any 
longer  with  the  will  of  the  legislator,  and  to  supplement 
this  by  law  based  upon  custom  is  also  insufficient.  All 
unwritten  law,  both  customary  law  and  that  which  is 
not  based  upon  custom,  must  be  kept  in  mind.  Under 
various  names,  such  as  expediency,  equity,  reasonable- 
ness, morals,  and  social  behavior,  but  without  the  me- 
dium of  either  statute  or  custom,  the  sense  of  right  di- 
rectly determines  the  decision  which  the  judge  or  the 
administration  renders  in  settling  a  conflict  of  interests. 
In  such  cases  the  suitor  at  law  or  the  judge  is  con- 
fronted by  a  far  more  delicate  problem  than  in  cases 
where  the  law  is  more  tangible.  In  order  to  find  the  law 
they  must  get  into  touch  with  the  legal  notions  of  the 
social  circle  to  which  the  interests  concerned  belong  and 
must  adjust  their  judgment  or  conduct  to  the  views 
which  govern  that  circle.  Rosters  in  particular  insists 
that  this  is  a  duty  of  the  judge,  especially  in  connection 
with  the  search  for  customary  law.  l)  "In  case  the  pop- 

*)  De  plants  van  gcwoonte  en  volksovertuiging  in  het  privaatrccht,  1912, 
p.  101. 


100  THE   MODERN   IDEA  OF  THE   STATE 

ular  feeling  for  right  does  not  express  itself  positively 
through  custom,  the  judge  will  have  to  settle  this  for 
himself  with  the  means  at  his  disposal,  by  the  state- 
ments of  experts,  literature,  popular  traditions,  etc. 
/The  well-being  of  the  society  for  the  benefit  of  which 
/the  judge  performs  his  duties  involves  among  other 
things  that  the  judge  shall  not  set  himself  above  the 
*  opinions  of  this  society.  He  must  render  his  decisions  in 
accord  with  the  views  which  dominate  this  society,  and 
more  particularly  in  accord  with  those  of  the  circle  to 
which  the  interested  parties  belong,  so  far  as  they  are 
compatible  with  order  and  morals."  A  more  general 
statement  of  this  point  of  view  by  a  Swiss  jurist  is  to  be 
found  in  a  Rectoral  Oration  by  Eggers.  1)  Speaking  of 
the  Swiss  Civil  Code,  he  remarks  that  it  contains  numer- 
ous provisions  permitting  a  very  considerable  latitude 
of  decision,  but  this  latitude  refers  not  to  the  private 
views  of  the  judge  but  primarily  "to  the  opinions  and 
social  good  sense  of  the  members  of  the  community." 
The  unwritten  law,  therefore,  even  when  it  does  not 
express  itself  in  custom,  has  an  objective  character  in 
so  far  as  the  rule  to  be  applied  invariably  owes  its  con- 
tent to  the  life  of  the  community. 

B.  Necessity.  However  well  organized  a  people's  sense 
of  right  may  be,  the  organization  will  never  be  able 
to  satisfy  the  need  for  law.  This  is  due  to  several 
reasons.  In  the  first  place,  all  the  relations  of  life,  present 
and  future,  cannot  be  exhaustively  organized,  partly 
because  the  imagination  of  the  legislator  does  not  ex- 
tend so  far  and  also  because  it  is  often  impossible  to 

l)  Schweizerische  Rechtssprechung  und  Rechtswissenschaft,   1913. 


THE    BASIS   OF  THE   BINDING   FORCE   OF  LAW      101 

find  out  what  is  really  just  except  by  reference  to  the 
concrete  circumstances.  In  the  second  place,  the  mak- 
ing of  law  by  the  legislative  organs  cannot  keep  pace 
with  the  shifting  value  of  social  interests.  A  statute 
may  represent  the  legal  value  of  these  interests  at  a 
particular  moment,  if  it  does  justice  to  the  importance 
which  these  interests  have  in  their  present  relations. 
But  with  a  change  in  these  relations  a  different  legal 
valuation  arises  which  does  not  always  find  expression 
in  new  legislation.  Then,  independently  of  the  function- 
ing of  legislative  organs,  an  unwritten  law  comes  into 
existence  which  has  the  same  basis  for  its  binding  force 
as  the  statutory  law. 

The  objections  to  recognizing  this  unwritten  law 
arise  from  the  special  significance  attributed  to  statu- 
tory law.  This  special  significance,  however,  exists  only 
if  the  binding  force  of  law  is  sought  in  the  will  of  a 
sovereign  by  whom  the  rule  was  issued.  According  to 
this  view,  unwritten  law  and  statutory  law  have  each  a 
special  basis  for  its  validity,  the  statutory  law  derived 
from  the  sovereign  taking  precedence.  This  view  reaches 
its  climax  when  the  statutory  law  is  made  competent 
to  nullify  any  unwritten  law,  even  customary  law.  This 
is  what  the  Dutch  Legislature  undertook  to  do  in  Ar- 
ticles 3  and  5  of  the  statute  fixing  the  general  rules  that 
govern  legislation.  1)  These  articles  assert  that,  "Cus- 
tomary law  is  valid  only  when  referred  to  by  statute," 
and  that,  "A  statute  can  lose  its  legal  force  only  by  a 
later  statute."  This  whole  line  of  argument  has  to  be 
given  up,  however,  as  soon  as  we  abandon  a  sovereign 

1)  "Algemeene  bepalingen  der  wetgeving  van  het  Koningrijk." 


102  THE   MODERN   IDEA   OF  THE    STATE 

endowed  with  original  authority.  When  this  view 
^is  abandoned,  statutory  law  is  seen  to  differ  from 
'  unwlitttJrlaw  only  in  the  manner  of  its  origin  and  not 

in  the  reason  for  its  binding  force.  No  power  on  earth 

I  ^_rf>^    V 

can  control  the  action  of  the  sense  of  right  and  when  it 
acts,  a  binding  rule  follows  spontaneously.  The  action 
of  the  sense  of  right  is  reduced  to  rule  by  the  represent- 
ative system,  but  this  system  possesses  no  monopoly  of 
it.  This  is  not  to  deny  that  at  times  statutory  law  stands 
higher  in  the  estimation  of  men  than  unwritten  law. 
This  is  due  to  the  fact  that  the  former  arises  from  a 
qualitative  sense  of  right  secured  by  selection ;  it  is  not 
because  statutory  law  is  the  law  of  the  sovereign.  And 
if  it  be  borne  in  mind  that  statutory  law,  though  a  pro- 
duct of  selection,  still  in  the  last  resort  is  based  upon  the 
popular  sense  of  right,  it  must  be  admitted  that  the 
unwritten  law,  which  derives  its  binding  force  from  the 
same  source,  is  of  equal  value,  whenever  it  is  felt  as 
living  law. 

C.  Supplementary.  The  field  in  which  unwritten  law 
is  mostly  found  is  that  which  the  statutory  law  has  not 
occupied.  Unwritten  law  has  primarily  a  supplement- 
ary function.  It  fills  the  gaps  in  the  statutes.  When 
one's  attention  has  once  been  directed  to  the  discovery 
of  unwritten  law,  one  is  amazed  at  its  extent.  Let  us 
consider  the  following  cases  as  examples.  It  often  hap- 
pens that  some  organ  of  public  interests  is  clothed  by 
positive  law  with  authority,  without  any  rule  being 
^  laid  down  for  the  exercise  of  this  authority.  The  amend- 
ing power  and  the  power  of  gnqutie^are  given  to 
the  legislature  without  limitation.  Does  it  follow,  then; 


THE    BASIS   OF  THE    BINDING   FORCE   OF  LAW      103 

that  these  powers  can  be  exercised  for  any  purpose? 
Are  there  no  limits  beyond  which  their  use  is  not  per- 
missible? That  such  limits  exist  is  not  open  to  doubt. 
Freedom  from  statutory  limitation  does  not  at  all  mean 
freedom  from  legal  limitation.  Consequently  one  finds 
that  the  textbooks  take  pains  to  discover  rules  defin- 
ing more  exactly  the  exercise  of  these  powers.  But 
what  they  seek  is  unwritten  law,  which,  as  supplement- 
ary to  constitutional  law,  embraces  an  important  part 
of  the  public  law. 

Again,  unwritten  law  is  applied  when  the  govern- 
ment makes  disbursements  or  collects  revenues  with- 
out a  budget,  if  the  latter  has  not  yet  been  passed  by 
parliament.  Another  application  occurs  when  the  po- 
lice, without  express  authorization  by  statute  or  ordi- 
nance, independently  takes  measures  to  protect  the 
public  against  accidents  in  case  of  a  derangement  of 
traffic  or  to  preserve  the  right  to  use  the  public  streets 
in  case  of  a  crowd.  Again,  unwritten  law  is  applied 
when  a  minister,  setting  aside  a  statute,  prohibits  or 
limits  the  exportation  of  gold  in  some  special  crisis,  in 
order  to  preserve  the  country's  purchasing  power  in 
foreign  markets.  All  these  officials  act  according  to  un- 
written law.  Their  acts  conform  to  the  sense  of  right  of 
the  community.  It  is  this  and  this  only  which  gives 
these  acts  legality;  they  possess  legality  only  in  so  far 
as  they  can  reasonably  claim  to  conform  to  the  com- 
munal sense  of  right. 

The  example  last  mentioned  brings  us  in  particular 
to  a  field  of  unwritten  law  which  has  been  well  known 
from  antiquity,  what  is  called  the  law  of  necessity.  So 


104  THE   MODERN   IDEA  OF  THE    STATE 

long  as  the  view  prevails  that  law  is  made  by  the  sov- 
ereign and  so  is  to  be  found  exclusively  in  statute,  the 
law  of  necessity  means  a  setting  aside  of  statute  and 
thus  a  restriction  of  law  dictated  by  necessity.  Then 
the  effort  must  be  made  to  regulate  this  law  of  neces- 
sity as  far  as  possible  by  the  legislature  in  order  to  pre- 
serve the  rulership  of  law  even  in  cases  of  necessity. 
But  with  the  abandonment  of  the  notion  of  sovereignty 
and  with  the  recognition  of  the  real  ground  upon  which 
the  binding  force  of  law  rests,  the  law  of  necessity  ap- 
pears in  quite  a  different  light.  It  can  be  regarded  only 
as  an  unwritten  law  for  cases  not  provided  for  by  stat- 
ute and  which  in  many  cases  could  not  have  been 
foreseen.  The  law  of  necessity  is  therefore  another 
law,  which  can  claim  the  same  validity  as  statutory 
law  and  which  differs  from  it  only  in  being  unwritten 
and  in  having  to  do  with  the  control  of  other  circum- 
stances than  the  normal  ones  contemplated  by  the 
statute. 

The  field  of  administrative  law  frequently  needs  to 
be  supplemented  by  rules  of  unwritten  law,  especially 
whenever  administrative  authorities  are  entrusted  by 
statute  with  a  so-called  discretionary  power.  Thus  for 
example  the  approval  of  such  authorities  may  be  pre- 
scribed without  any  rule  being  laid  down  to  govern  the 
granting  or  denial  of  this  approval.  It  is  perfectly  clear 
that  such  a  power  cannot  be  exercised  arbitrarily.  But 
if  this  be  admitted,  it  must  be  possible  to  discover 
legal  rules  by  which  the  legality  of  the  decisions  made 
can  be  tested.  Every  power  is  granted  on  condition  of 
its  being  exercised  reasonably  and  we  must  appeal  to 


THE   BASIS   OF  THE   BINDING   FORCE  OF  LAW     105 

unwritten  law  in  order  to  be  able  to  apply  the  standard 
of  reasonableness  to  any  decision. 

Whenever  certain  undefined  rules  are  laid  down  for 
the  exercise  of  authority,  unwritten  law  has  to  be  in- 
voked to  establish  concretely  what  these  indefinite 
directions  really  mean.  Examples  of  this  occur  when 
authority  is  to  be  exercised  in  behalf  of  the  public 
order,  the  public  peace,  the  public  morality,  on  the 
occasion  of  a  sufficient  need,  or  in  the  general  interest. 
Unwritten  law,  therefore,  makes  it  possible  to  judge  of 
the  legality  of  the  decisions  reached. 

The  unwritten  law  makes  itself  felt  even  in  the  field 
of  criminal  law,  though  it  is  said  that  only  statutory 
law  is  in  force  here.  The  Dutch  statute  on  burial  provides 
that  a  corpse  must  be  buried  but  neglects  to  say 
who  is  responsible  for  the  interment.  It  has  been  con- 
cluded that  punishment  is  excluded  in  this  case  because 
no  one  can  be  described  as  the  guilty  party,  and  this 
conclusion  is  incontestible  if  there  is  no  law  outside  the 
statute.  And  yet  any  one  who  can  recognize  the  oper- 
ation of  the  sense  of  right  outside  legislation  has  no 
reason  to  be  at  a  loss,  in  spite  of  the  silence  of  the  statute. 
For  he  finds  that  the  sense  of  right  of  all  Christendom 
has  clearly  expressed  itself  concerning  the  responsibil- 
ity for  the  burial  of  the  dead.  No  one  will  deny  that  in 
the  case  of  children  this  duty  devolves  upon  the  par- 
ents and  vice  versa,  and  that  it  is  reciprocal  as  between 
husband  and  wife  and  brothers  and  sisters.  But  if  our 
inner  sense  of  right  admits  this  in  the  great  majority  of 
cases,  has  not  this  unwritten  law  a  validity  at  least  as 
unconditional  as  the  statute  ? 


106  THE   MODERN   IDEA  OF  THE   STATE 

Finally,  if  one  surveys  the  field  of  private  law,  one 
finds  many  institutions  and  relations  about  which  stat- 
utory law  is  silent  but  which  are  none  the  less  valid 
legal  institutions  and  relations  in  social  life,  in  spite  of 
the  absence  of  support  by  statute.  Moreover,  if  one 
considers  the  most  recent  statutes  and  codifications  of 
private  law,  one  is  even  more  surprised  to  see  in  how 
many  fields  the  statutory  law  itself  has  contracted  and 
has  surrendered  the  control  of  relations  between  the 
members  of  the  community  to  unwritten  law,  that  is, 
to  the  rules  which  ought  to  be  binding  according  to 
the  prevailing  convictions  as  to  what  is  right. 

The  judges  would  long  since  have  recognized  this  un- 
written law  openly,  if  the  Court  of  Cassation  (in  the 
Netherlands)  had  not  been  committed  to  statutory  law. 
For  this  reason  the  whole  judiciary  had  to  accept  stat- 
ute as  the  only  source  of  law.  Under  these  circumstances 
the  unwritten  law  has  to  force  its  way  in  by  the  bye- 
paths  of  statutory  interpretation,  and  one  is  often 
amazed  at  the  cleverness  of  the  judges,  and  sometimes  at 
their  courage,  in  injecting  a  rule  of  unwritten  law  into 
a  statute  and  then  emphasizing  it  as  a  statutory  rule. 
The  most  striking  example  of  this  is  the  interpretation 
of  Article  625  of  our  Civil  Code,  which  has  the  effect 
of  preventing  unwarrantable  interferences  with  prop- 
erty by  ordinances.  While  the  article  in  question  has 
not  a  word  to  say  about  warrantable  or  unwarrantable 
interferences  with  property,  in  cases  where  it  would  be 
contrary  to  the  prevailing  sense  of  right  to  leave  com- 
munal councils  supreme  over  the  limitation  or  extin- 
guishment of  property  rights,  the  Court  of  Cassation 


THE   BASIS  OF  THE    BINDING  FORCE   OF  LAW     107 

has  quite  rightly  assumed  jurisdiction.  Since  it  felt, 
however,  that  it  needed  statutory  authority  to  do  this, 
it  has  availed  itself  of  this  Article  which  is  entirely  si- 
lent regarding  such  jurisdiction  but  which  has  been 
made  to  speak  by  the  Court  of  Cassation. 

D.  Abrogating  and  Modifying.  The  unwritten  law  can 
abrogate  and  modify  statutory  law  as  well  as  supple- 
ment it.  Such  a  possibility  can  scarcely  be  denied  if  all 
law,  including  statutory  law,  owes  its  authority  to  one 
and  the  same  source,  viz.,  the  sense  of  right,  as  is  main- 
tained in  this  work.  So  far  as  the  binding  force  of  law 
is  concerned,  it  makes  no  difference  whether  the  oper- 
ations of  this  sense  of  right  are  organized  or  not.  Still, 
as  was  emphasized  above,  it  must  not  be  forgotten  that 
in  the  activity  of  the  organized  sense  of  right  both  the 
existence  and  the  content  of  such  a  normative  sense 
are  clearly  manifest,  while  with  the  unwritten  law  this 
is  not  usually  the  case.  Hence  the  burden  of  proving 
that  statutory  law  has  lost  its  binding  force  lies  upon 
those  who  appeal  to  a  contrary  unwritten  law.  Now  it 
will  generally  be  more  difficult  to  prove  this  if  the  leg- 
islative authority  is  adequately  organized  to  express 
completely  the  sense  of  right  of  the  people  than  if  this 
organization  is  lacking  or  defective,  or  if  in  certain  re- 
spects the  organization  cannot  express  itself  normally. 

In  the  case  first  mentioned,  where  there  are  gross 
defects  in  the  general  organization  of  the  sense  of  right, 
the  force  of  unwritten  law  will  show  itself  especially  by 
setting  aside  the  law-making  organ.  By  means  of  rev- 
olution an  unwritten  law  will  be  established  and  a  new 
organ  of  law  set  up.  Only  in  this  way  can  the  rise  of  the 


108  THE   MODERN   IDEA   OF  THE   STATE 

Triumvirate  in  Holland  in  1813  and  the  change  in  the 
form  of  government  on  the  accession  of  William  VI  be 
legally  justified.  That  these  changes  caused  the  abroga- 
tion of  written  law  is  no  reason  for  regarding  them  as 
violations  of  law,  for  the  binding  force  of  the  written 
law  had  long  been  lost  as  a  result  of  changes  in  the  le- 
gal convictions  of  the  people  and  this  written  law  had 
been  able  to  maintain  itself  only  by  the  assistance  of 
organized  force. 

In  the  second  case  mentioned  above  we  see  the  peace- 
ful accomplishment  of  the  changes  which  occur  vio- 
lently in  revolutions.  Because  a  large  part  of  our  con- 
stitutional law  is  fixed  in  a  written  constitution  which 
can  be  revised  only  in  a  troublesome  and  abnormal 
manner,  normal  legislation  is  blocked  in  many  fields. 
Consequently  written  law  cannot  keep  pace  with  the 
changing  legal  convictions  regarding  certain  constitu- 
tional interests.  These  convictions  accordingly  find  ex- 
pression in  an  unwritten  law  at  variance  with  the  writ- 
ten constitution.  The  best  known  example  of  this  is 
the  parliamentary  form  of  government  which  has  been 
adopted  in  this  country  in  spite  of  the  Constitution  and 
which  functions  as  a  legal  institution.  As  a  result  of  un- 
written law  in  this  case  the  king's  right  to  veto  legisla- 
tion and  also  his  right  to  choose  his  ministers  have  been 
abrogated,  though  both  rights  are  expressly  granted 
him  by  the  Constitution.  A  not  less  significant  exam- 
ple is  to  be  found  in  the  relation  of  the  state  to  educa- 
tion, which  since  1889  has  become  entirely  different 
from  that  provided  by  the  Constitution.  Moreover,  the 
exercise  of  the  right  to  dissolve  the  Chambers  and  the 


THE    BASIS   OF  THE   BINDING   FORCE   OF   LAW     109 

influence  of  the  electors  in  determining  the  policy  of 
the  government  after  the  periodic  elections  rest  upon 
unwritten  legal  conventions  quite  outside  the  Consti- 
tution. Many  other  examples  might  be  mentioned  which 
attest  the  existence  of  a  living  constitutional  law  stand- 
ing outside  the  written  Constitution  and  contrary  tox 
it,  resulting  from  the  abnormal  method  of  legislation 
which  the  Constitution  provides  for  its  own  revision. 
But  there  is  still  another  way  in  which  statutory  law 
loses  its  force  through  the  operation  of  unwritten  law : 
statutory  law  is  simply  no  longer  observed  and  enforced 
or  only  partly  so.  This  is  the  case,  for  example,  with 
many  French  statutes  which  have  never  actually  been 
repealed  but  which  are  no  longer  observed.  The  com- 
mission established  in  1 849  to  pass  upon  the  legal  force 
of  these  statutes  remarked  again  and  again  that  this 
or  that  statute  had  lost  its  force  owing  to  changed  con- 
ditions. That  this  was  not  always  the  real  reason,  how- 
ever, appears  clearly  from  the  fact  that  some  statutes 
which  met  an  existing  need,  like  that  dealing  with 
ferries,  were  considered  binding,  in  spite  of  changed 
conditions  which  might  have  been  adduced  as  reasons 
for  regarding  them  as  no  longer  valid.  That  some 
French  statutes  are  still  binding  while  others  are  not 
depends  upon  the  fact  that  the  sense  of  right  of  the 
present  generation  accepts  some  and  rejects  others. 
Again,  from  the  period  following  the  restoration  of  our 
independence,  we  have  a  clear  example  in  the  statute 
on  Sabbath-observance  of  a  law  which  is  only  partly 
observed  and  enforced  because  of  changed  opinions  as 
to  what  is  right. 


110  THE    MODERN    IDEA  OF  THE    STATE 

E.  Statute  (Gesetz)  and  Law  (Recht).  If  facts  such  as 
the  foregoing  show  that  an  unwritten  law  is  firmly 
established  and  that  its  binding  force  may  be  consid- 
ered to  arise  from  the  same  source  as  that  of  statutory 
law,  the  articles  l)  cited  above  from  the  statute  fixing 
general  rules  for  legislation  are  worthless  and  without 
any  practical  significance.  The  fact  is  once  for  all  that 
no  one  can  exercise  any  control  over  the  working  of 
men's  sense  of  right.  The  legislator  or  any  other  alleged 
possessor  of  power  is  as  powerless  as  a  private  person 
to  silence  the  sense  of  right  of  any  individual  whatever. 
The  proposition  that  custom  makes  no  law  except  as 
statute  refers  to  it,  that  a  statute  can  lose  its  force  only 
by  a  later  statute,  that  the  judge  shall  decide  according 
to  statute,  is  quite  intelligible  and  explicable  so  long 
as  the  fiction  obtains  that  all  law  is  valid  only  by  the 
consent  of  the  legislator.  But  as  soon  as  this  fiction  is 
discarded  and  the  real  authority  of  the  law  is  inves- 
tigated, the  futility  of  such  rules  is  obvious.  It  lies  in  no 
man's  power  to  decide  what  shall  have  the  force  of  law. 
For  nothing  is  really  law  except  what  proceeds  from 
the  single  source  which  alone  can  give  a  rule  the  quality 
of  law,  the  ultimate  sense  of  right.  What  does  not  come 
from  this  source  may  beenTorced  by  the  power  of  the 
state  or  it  may  be  applied  in  the  decisions  of  the  bench, 
—  it  may  bewhat Ehrlich  calls  the  "rule  for  decisions,"  — 
but  it  is  not  and  never  can  be  law.  The  modern  idea  of 
the  state  seeks  to  eliminate  from  society  all  exercise  of 


*)  Article  3,  Customary  law  is  valid  only  when  referred  to  by  statute ; 
Article  5,  A  statute  can  lose  its  legal  force  only  by  a  later  statute; 
Article  1 1,  The  judge  shall  render  his  decisions  according  to  statute. 


THE   BASIS   OF  THE   BINDING   FORCE   OF  LAW     111 

power,  all  force,  all  authority  which  serves  any  other 
purpose  than  the  enforcement  of  law.  Its  essential  con- 
tent, therefore,  lies  in  the  exclusive  authority  which  it 
seeks  to  secure  to  the  law.  For  this  reason  it  is  uncom- 
promisingly opposed  to  the  old  idea  of  the  state,  seen 
most  clearly  in  the  absolute  monarchy,  which  starts 
from  a  mechanism  of  powers  (the  judges,  the  police, 
the  army)  and  identifies  the  field  controlled  by  these 
powers  with  the  field  of  law.  There  is  no  doubt  what- 
ever that  the  day  of  this  theory  is  done,  even  though 
it  is  still  frequently  defended.  The  more  we  perceive 
the  law  to  be  an  ethical  force,  the  more  the  view  devel- 
ops that  law  has  its  basis  in  human  nature  and  does 
not  live  upon  the  sufferance  of  any  organization  of  gov- 
ernmental powers.  Once  this  is  clearly  understood,  it 
is  impossible  to  close  one's  eyes  to  the  broad  extent  of 
unwritten  law  under  which  society  lives;  it  is  equally 
impossible  to  trace  the  binding  force  of  this  unwritten 
law  to  any  other  source  than  that  which  gives  rise  to 
the  authority  of  all  other  law.  The  articles  cited  from 
the  statute  fixing  general  rules  for  legislation  express 
the  old  notion  of  the  state  which  identified  it  with  the 
organization  for  the  use  of  compulsion.  Whoever  can 
set  this  organization  in  motion  possesses  power  and  can 
therefore  decide  what  rules  of  law  shall  be  effective,  to 
the  extent  that  he  uses  his  power  to  enforce  some  rules 
and  refuses  to  enforce  others.  As  was  explained  above, 
this  theory  of  the  state  undoubtedly  had  at  one  time 
both  theoretical  and  practical  significance ;  even  yet  it 
has  a  considerable  significance  for  many  jurists.  These 
consequently  define  law  as  something  which  can  be 


1  1 2  THE   MODERN   IDEA  OF  THE   STATE 

maintained  by  force,  or  as  that  which  the  bench  uses  in 
its  decisions.  But  this  view  is  untenable  in  theory  and 
discredited  in  practice. 

It  is  untenable  in  theory  because  a  machinery  of 
powers  is  never  anything  except  a  machine,  a  thing 
without  a  soul,  unmoved  by  its  own  inner  purpose. 
To  accomplish  anything  it  must  be  set  in  motion  from 
the  outside  and  its  operations  depend  upon  the  person 
who  can  manage  it.  This  person  is  the  sovereign,  who 
in  the  fullness  of  his  power  doles  out  favovs  and  is 
thought  to  have  an  exclusive  right  to  settle  the  au- 
thority of  law.  So  the  matter  was  conceived  for  cen- 
turies and  so  it  is  often  conceived  yet.  But  if  one  In- 
quires about  the  legal  title  of  this  sovereign  and  is  not 
content  with  fictions  drawn  from  the  theories  of  divine 
right  and  popular  sovereignty,  one  finds  that  in  the 
eyes  of  the  law  the  sovereign  has  no  title  whatever  and 
that  the  whole  machinery  which  goes  by  the  name  of 
the  state  is  supported  only  by  tradition.  It  is  a  bare 
fact  which  lacks  legal  justification.  This  raises  anew 
the  question  regarding  the  basis  of  the  authority  embod- 
ied in  the  state.  Reflection  upon  this  question  leads  to 
the  conclusion  that  the  rulership  of  the  state  must  be 
founded  upon  the  authority  of  law  alone,  and  thus  we 
are  led  to  seek  the  source  of  this  legal  authority.  The 
source  of  legal  authority,  however,  was  found  in  the 
spiritual  nature  of  man,  in  a  feeling  or  sense  of  right 
inherent  in  human  nature.  In  this  manner  the  author- 
ity of  law  was  made  manifest  as  something  auton- 
omous and  not  dependent  upon  the  operation  of  any 
sort  of  governmental  machinery.  At  the  same  time, 


THE   BASIS   OF  THE   BINDING   FORCE   OF  LAW      113 


however,  the  real  purpop^  of  *hig  marfringry  ramp  fa 
light,  viz.,  that  of  insuring  the  rulership  of  law.  This 
purpose  was  quite  lacking  so  long  as  the  arbitrary  will 
of  a  sovereign  controlled  its  use. 

Even  the  organs  of  judicial  authority  are  beginning 
to  perceive  that  the  governmental  organization  is  nat- 
urally subordinate  to  the  law  (Recht)  and  not  merely 
to  the  statute  (Gesetz).  Hence  the  theory  opposed 
in  this  work  has  been  discredited  in  practice  also.  It 
was  like  a  sudden  revelation  to  discover  how  far  juris- 
prudence had  gone  in  subordinating  statute  to  law. 
The  judge  knew  how  to  hide  the  fact  that  he  was  no 
longer  the  slave  of  the  statutes  ;  often  he  was  not  clearly 
conscious  of  the  change  himself.  For  on  the  surface 
everything  remained  as  it  had  always  been.  The  same 
statutory  articles  continued  to  be  cited  in  the  deci- 
sions, but  below  the  surface  a  radical  change  had  taken 
place.  By  an  artificial  process  of  interpretation  the  rule 
accepted  as  law  by  the  prevailing  sense  of  right  was 
injected  into  the  text  of  the  statute.  Thanks  to  an 
enlightenment  which  has  come  to  them  from  every 
quarter,  the  judges  now  know  exactly  what  they  are 
doing  and  feel  themselves  called  to  a  new  service.  In 
reality,  then,  nothing  remains  but  to  bring  them  to  an 
open  acknowledgment  of  their  relation  to  the  law. 
They  w?ll  be  brought  to  such  an  acknowledgment  as 
soon  as  they  fully  realize  that  their  obedience  is  due 
to  the  statutes  only  because  the  statutes  are  a  part  of 
the  law.  If  then  a  statute  requires  that  decisions  be 
rendered  only  according  to  the  statutes,  this  require- 
ment cannot  be  fulfilled  because  it  finds  no  support  in 

The  modern  idea  of  the  State.  8 


114  THE   MODERN   IDEA  OF  THE   STATE 

any  sense  of  right.  That  any  sense  of  right  should  not 
be  permitted  to  express  itself  or  that  it  should  be  in 
any  way  restricted  in  its  operation  is  a  contention  that 
would  undermine  the  whole  foundation  of  the  ruler- 
ship  of  law  and  would  bring  us  back  to  the  notion  01  a 
sovereign  who  can  make  law  without  regard  to  the 
sense  of  right  in  the  members  of  the  community.  If 
then  the  judge  is  to  decide  according  to  the  statutes 
because  these  are  a  part  of  the  law,  his  obligation  is 
exactly  the  same  toward  all  other  law  as  well.  In  con- 
nection with  this  theory  of  the  relation  of  the  judge  to 
statutory  law,  it  should  still  be  borne  in  mind  that  in 
applying  unwritten  law  the  judge  in  no  way  puts  him- 
self in  the  place  of  the  legislator.  His  office  remains 
what  it  always  was.  He  upholds  a  legal  relation  on  the 
basis  of  a  rule  which  is  already  valid.  He  creates 
no  new  law.  The  difference  between  the  present 
and  the  past  does  not  lie  in  the  judicial  function 
but  in  the  nature  of  the  law  itself  upon  which  the 
judge  is  permitted  to  base  his  decisions.  According  to 
the  modern  idea  of  the  state,  the  judge  must  take  all 
law  into  account,  however  it  may  have  originated,  and 
including  therefore  the  unwritten  law.  According  to 
the  theory  that  only  the  sovereign's  law  is  valid,  he 
could  take  account  of  unwritten  law  only  so  far  as  the 
statutes  permitted.  The  controversy  about  the  freedom 
of  judges  toward  the  statutory  law  may  be  reduced  to 
this  simple  formula. 

XV.  Strengthening  the  Authority  of  Law.  A  thoroughly 
primitive  community  has  a  legal  system  which,  so  to 


THE   BASIS   OF  THE   BINDING   FORCE   OF  LAW      115 

speak,  works  automatically.  The  mental  life  of  the  in- 
dividual is  as  yet  so  little  differentiated  that  almost 
the  whole  business  of  his  life  is  controlled,  along  with 
that  of  others,  by  the  communal  mind.  Individual 
forces  in  opposition  to  this  communal  mind  show  them- 
selves only  in  a  very  small  degree.  Hence  there  is  no 
special  need  to  neutralize  these  opposing  forces  in  order 
to  strengthen  the  authority  of  the  group.  If  it  appears 
from  the  conduct  of  the  individual  that  he  cannot  submit 
to  the  communal  mind,  he  is  expelled  from  the  society. 

This  condition  changes  in  proportion  as  the  individ- 
ual frees  himself  from  the  collective  mental  life  and 
develops  a  mental  life  of  his  own.  In  so  far  as  individ- 
ual modes  of  conduct  are  contrary  to  the  rules  of  the 
community  and  thus  tend  to  undermine  the  authority 
of  these  rules,  it  becomes  necessary  to  curb  anti-social 
impulses  and  thus  to  strengthen  the  authority  of  the 
communal  order. 

A.  The  Administration  with  reference  to  Punishments 
and  Judicial  Executions.  Punishments  and  judicial  exe- 
cutions have  been  from  antiquity  the  means  of  attain- 
ing this  end.  Not  that  these  are  the  only  means  of 
inducing  obedience  to  the  law;  there  are  many  other 
motives  which  strengthen  obedience,  such  as  private 
interests,  social  conventions,  etc.  But  punishments  and 
executions  have  always  been  the  means  which  the  legal 
system  itself  has  possessed  of  strengthening  its  author- 
ity and  of  imbuing  the  individual  mind  with  the  neces- 
sity of  the  communal  life,  in  so  far  as  the  sense  of  right 
does  not  suffice  to  bring  every  one  to  an  observance  of 
the  rules  of  the  community. 


116      THE  MODERN  IDEA  OF  THE  STATE 

One  part  of  the  legal  order,  therefore,  contains  an 
organization  for  applying  punishments  and  enforcing 
executions.  This  part  provides  for  one  of  the  oldest 
public  interests,  almost  as  old  as  the  military  interest 
which  is  concerned  with  enforcing  the  independence  of 
the  community.  Law-making  by  legislative  assemblies 
represents  a  public  interest  for  which  adequate  legal 
provision  has  been  made  only  since  the  introduction  of 
the  constitutional  system  and  which  is  therefore  scarcely 
a  century  old.  But  almost  from  the  time  the  state  came 
into  existence  the  need  of  strengthening  the  author- 
ity of  law,  however  made,  appeared  as  a  pressing 
public  interest.  To  meet  this  need  and  to  provide  for 
this  interest,  an  organization  was  called  into  being 
which  operated  by  means  of  punishments  and  execu- 
tions, together  with  the  judicial  process  connected 
with  them.  The  strengthening  of  the  authority  of  law 
necessitated  an  organization  of  power,  precisely  as  the 
interest  of  the  community  in  protecting  its  own  inde- 
pendence required  a  mechanism  of  force.  The  develop- 
ment of  this  organization  of  power  has  been  regarded 
as  the  essence  of  the  idea  of  the  state  and  primarily 
for  this  reason  the  state  has  been  looked  upon  as  a 
manifestation  of  force.  As  a  result,  the  concept  of  a 
sovereign  endowed  with  an  inherent  legal  authority  was 
made  the  basis  of  the  whole  theory  of  the  state.  Hence 
the  notion  is  still  prevalent  that  real  rulership  lies  in 
control  over  this  organized  power.  Thus  the  authority 
of  the  law  is  not  only  excluded  but  its  binding  force  is 
made  to  depend  upon  its  enforcement  by  this  organiza- 
tion of  power. 


THE   BASIS  OF  THE   BINDING   FORCE   OF  LAW     117 

In  opposition  to  this  view  it  is  to  be  noted  in  the  first 
place  that  the  means  of  compulsion  by  which  punish- 
ments and  executions  are  applied  are  themselves 
rooted  in  the  law,  for  the  exercise  of  compulsion  and  all 
that  goes  with  it,  such  as  judicial  process,  originates 
in  legal  obligations.  In  this  case  also  we  are  dealing 
with  a  system  of  law,  which  however  operates  only  in 
a  subsidiary  capacity ;  that  is,  it  functions  only  in  case 
of  a  violation  of  the  social  order  which  is  binding  upon 
the  citizens.  The  authority  of  this  social  order  is  thus 
supported  by  another  order.  But  quis  custodet  custodes 
ipsos  ?  Is  a  third  legal  organization  of  a  still  more  subsid- 
iary kind  to  be  created,  the  operation  of  which  is  de- 
pendent upon  violations  of  the  preceding  order  ?  Legal 
order  might  thus  be  piled  on  legal  order  without 
reaching  an  assurance  that  any  of  them  would  ever  be 
obeyed.  We  have  to  look  about  therefore  for  some 
extra-legal  sanction  in  order  to  secure  obedience  to  the 
legal  system  by  which  compulsion  is  applied.  What  is 
this  extra-legal  sanction  by  which  those  entrusted  with 
enforcing  the  law,  with  police  and  military  duties,  are 
induced  to  fulfill  their  legal  obligations,  if  the  legal 
character  of  these  duties  is  not  itself  a  sufficient  mo- 
tive ?  This  sanction  has  been  found  for  ages  in  the  fact 
that  their  personal  interests  are  involved  in  the  per- 
formance of  their  duties.  This  is  effected  by  making 
this  sort  of  public  service  a  vocation  and  means  of  liveli- 
hood. In  other  words,  office  holding  is  established  as 
a  social  and  economic  profession. 

The  oath  is  another  method,  formerly  more  used 
than  now,  of  insuring  the  performance  of  their  legal 


118  THE   MODERN   IDEA  OF  THE   STATE 

duties  by  officials.  But  this  method  has  a  meaning  only 
for  those  who  swear  a  real  oath  when  they  call  upon 
the  name  of  God.  Such  a  person  as  a  rule  believes  that 
the  breaking  of  an  oath  involves  divine  penalties  of  a 
fearful  nature  and  this  belief  may  offer  a  guarantee 
that  he  will  perform  his  duties.  However,  the  ques- 
tionable side  of  this  mode  of  strengthening  the  law  lies 
in  its  use  to  uphold  a  statute  even  after  the  statute  has 
lost  its  legal  character.  Thus  for  religious  reasons  rules 
are  obeyed  which  are  not  rules  of  law,  or  which  actually 
run  counter  to  the  law.  This  is  seen  most  clearly  in  the 
case  of  the  constitution  where,  because  of  the  difficult 
rules  for  its  revision,  there  is  often  a  wide  discrepancy 
between  its  requirements  and  those  approved  by  the 
popular  sense  of  right.  Experience  shows  that  in  the 
long  run  the  sense  of  right  triumphs  over  the  oath. 
The  article  on  education  in  our  Constitution  is  an 
example  of  this. 

When  the  official's  legal  obligation  is  supported  by 
a  simple  promise,  it  is  at  most  made  more  clearly  con- 
scious ;  there  is  no  essential  strengthening  of  the  obliga- 
tion. When  a  promise  is  frequently  exacted,  however, 
this  suggests  that  the  obligation  to  obey  a  rule  of  law 
depends  upon  the  will  of  the  individual,  which  im- 
pairs the  independent,  objective  validity  of  the  law. 

The  most  important  means  for  securing  the  enforce- 
ment of  the  law  and  the  means  which  are  generally 
effective  lie  in  the  fact  that  the  personal  interests  of  the 
officials  coincide  with  the  performance  of  their  duties. 
These  interests  are  represented  mainly  by  their  eco- 
nomic and  social  position.  The  special  sanction  thus 


THE   BASIS   OF  THE   BINDING  FORCE   OF  LAW     119 

given  to  the  performance  of  the  obligations  imposed 
upon  officials,  however,  makes  the  organization  of  these 
persons  who  exercise  compulsion  a  great  social  power. 
This  may  become  inimical  to  the  exclusive  supremacy 
of  the  law  if  it  is  applied  to  other  than  legal  ends.  This 
possibility  arises  when  a  refusal  to  use  the  agencies  of 
government  for  ends  other  than  the  administration  of 
law  puts  the  officials  in  danger  of  losing  their  places 
and  thus  menaces  their  private  interests.  The  only  way 
to  guard  against  this  is  by  so  fixing  their  legal  status 
that  they  are  not  dependent  upon  particular  persons 
for  the  retention  of  their  offices.  So  long  as  this  is  not 
done  there  exists  a  center  of  force  which  contains  a 
threat  to  the  authority  of  law.  The  mere  existence  of 
such  a  force  based  upon  a  personal  hierarchy  gives 
support  to  the  notion  of  a  sovereign,  an  extra-legal  state 
power  outside  and  opposed  to  that  which  exists  in  the 
legal  order.  The  military  organization  in  particular  has 
fostered  this  notion,  since  the  army  is  the  greatest  and 
most  powerful  instrument  of  force.  Formerly  this  was 
more  the  case  than  it  is  now.  For  in  the  past  the  army 
was  composed  of  mercenaries  and  the  service  of  arms 
was  a  source  of  income  or  a  profession.  The  prince  con- 
trolled the  persons  engaged  in  it  by  means  of  the  eco- 
nomic interest  connected  with  the  profession.  Now  how- 
ever mercenaries  have  been  replaced  by  a  citizen  sol- 
diery and  the  duty  of  military  service  has  become  a 
very  oppressive  burden.  Every  effort  has  been  made  to 
strengthen  this  service  by  rigid  military  discipline,  but 
as  a  mere  instrument  of  compulsion  the  importance  of 
the  army  has  declined,  because  private  interests  are  no 


120  THE    MODERN    IDEA   OF   THE    STATE 

longer  concerned  in  the  performance  of  this  duty.  Thus 
if  the  army  were  now  to  be  used  to  uphold  a  system 
which  had  lost  its  binding  force  among  the  people,  its 
unsuitableness  for  such  a  purpose  would  appear  at 
once,  in  spite  of  the  fact  that  personal  subordination  in 
the  army  is  pushed  to  the  point  of  destroying  individ- 
ual initiative. 

Though  the  army  is  less  an  extra-legal  "power  of  the 
state"  now  than  in  the  past,  the  idea  of  such  a  power 
still  persists,  especially  where  there  is  a  profession  de- 
voted to  the  exercise  of  compulsion.  This  is  clear  from 
the  continual  appearance  of  ideas  and  conduct  which 
aim  to  allow  the  professionalized  organization  of  com- 
pulsion to  act  according  to  a  special  system  of  its  own 
outside  the  ordinary  law.  In  order  to  assert  the  inde- 
pendence of  the  sovereign  authority,  which  usually 
meant  the  personal  power  of  a  prince,  and  also  to 
strengthen  it,  the  political  theory  of  absolutism  first 
placed  the  authority  of  the  prince  outside  the  ordinary 
law  and  then  admitted  his  competence  to  create  a  law 
of  his  own  for  the  interests  entrusted  to  his  care.  Recent 
political  theory  has  transferred  all  this  from  the  prince 
to  "the  state."  It  therefore  holds  that  the  state  "as 
such."  —  which  means  the  organized  mar.^p**^  nf 
power,  --is  not  subject  to  ordinary  law  and  that  this 
~~stateas  such,"  entirely  independent  of  law,  possesses 
an  absolute  superiority  over  its  citizens.  This  does  not 
indeed  prevent  the  state  from  standing  in  legal  rela- 
tions with  its  citizens,  but  it  does  mean  that  these  rela- 
tions are  essentially  different  from  those  controlled  by 
ordinary  law,  because  the  subjects  of  these  relations  are 


THE   BASIS  OF  THE   BINDING   FORCE  OF  LAW     121 

unequal.  In  this  way  a  distinction  in  principle  was 
made  between  public  and  private  law,  the  ordinary 
law  being  limited  to  the  latter.  If  this  opposition  be 
assumed,  those  persons  who  are  commissioned  to  exer- 
cise compulsion  are  subject  to  public  law.  This  gives 
rise  to  the  following  results: 

1.  As  officials  these  persons  share  the  favored  status 
of  the  sovereign,  who  stands  outside  ordinary  law  and 
who  is  therefore  not  subject  to  the  ordinary  rules  of 
responsibility.  This  notion  gives  an  enduring  support 
to  the  conception  of  the  state  as  a  manifestation  of 
power  clothed  with  inherent  authority.  This  concep- 
tion of  the  state  leads  finally  to  the  conclusion  that, 
since  the  state  has  the  task  of  administering  the  law, 
it  also  decides  what  has  the  force  of  law. 

2.  As  private  persons  these  officials  occupy  a  position 
of  legal  inequality  in  relation  to  the  sovereign  and  there- 
fore this  relation  cannot  be  said  to  be  the  ordinary 
one  of  master  and  servant.  The  denial  of  such  a  rela- 
tionship, however,  places  the  official  in  a  position  of 
thorough-going  economic  dependence  upon  the  state. 
Any  possible  opposition  to  rendering  services  outside 
the  law  can  easily  be  broken  down. 

The  theory  of  the  state  advanced  in  this  work  can 
recognize  in  the  mutual  relations  of  men  no  authority 
other  than  that  of  law.  It  therefore  denies  the  existence 
of  a  sovereign  having  inherent  power  and  rejects  the 
opposition  between  public  and  private  law.  For  the 
basis  of  this  distinction  is  the  assumption  that  the  sta- 
tus of  the  parties  is  in  the  one  case  that  of  equality  and 
in  the  other  that  of  superior  and  inferior.  The  structure 


122      THE  MODERN  IDEA  OF  THE  STATE 

and  functions  of  the  agencies  by  which  punishments  and 
executions  are  enforced  arise  from  legal  obligations  of 
precisely  the  same  kind  as  all  other  legal  obligations. 
Hence  it  makes  no  difference  whether  these  obligations 
arise  from  the  ordinary  law  or  from  special  systems  of 
law.  They  serve  to  strengthen  the  authority  of  the  law 
to  which  the  citizens  are  subject.  For  their  own  part 
they  are  guaranteed  not  by  a  third  system  of  law  but 
by  an  extra-legal  means  which  the  law  utilizes  to  insure 
the  performance  of  these  executive  duties,  viz.,  the 
dependence  of  the  private  interests  of  the  officials  upon 
their  performance  of  these  executive  duties.  But  if  this 
means  is  not  to  defeat  its  own  purpose,  it  is  necessary 
to  insure  the  economic  and  social  position  of  officials 
by  law  in  such  a  way  that  their  own  opposition  will 
prevent  the  use  of  their  services  for  any  end  other  than 
the  administration  of  law. 

B.  The  Further  Task  of  Administration.  The  same 
extra-legal  guarantee  for  the  fulfillment  of  legal  duties 
is  found  also  in  the  law  which  governs  the  further  ad- 
ministrative tasks  of  the  state,  such  as  the  health  serv- 
ice, education,  water-supply,  the  care  of  streets,  etc. 
Here  also  the  various  kinds  of  work  required  became 
professions  and  the  legal  duty  was  thus  strengthened 
in  the  way  described  above.  But  in  the  case  of  these 
administrative  tasks  the  prevailing  theory  of  the  state 
was  always  somewhat  confused.  The  sovereign  was 
clearly  not  in  evidence  here  and  there  was  no  exercise 
of  compulsion.  This  whole  field,  therefore,  was  consid- 
ered as  belonging  to  the  sphere  of  the  state's  activity 
under  private  law.  The  persons  charged  with  such  work 


THE   BASIS  OF  THE   BINDING   FORCE   OF  LAW      123 

were  sharply  distinguished  from  those  who  had  to  per- 
form the  tasks  of  sovereignty.  Only  the  latter  were 
"officials"  and  had  a  share  in  the  privileged  status  of 
the  sovereign.  But  with  the  extension  of  the  state's 
administrative  duties,  and  particularly  after  special 
systems  of  law  had  grown  up  for  these  purposes,  it 
could  scarcely  be  held  that  this  field  of  interests  be- 
longed essentially  to  private  law.  The  criterion  which 
had  been  employed  for  distinguishing  officials  from 
those  who  were  not  officials,  -  -  that  is,  the  nature  of 
their  duties,  whether  "sovereign"  or  "technical," 
had  to  be  abandoned.  The  whole  field  of  administration 
was  regarded  as  part  of  the  work  of  the  sovereign  and 
was  therefore  incorporated  in  public  law.  Thus  sub- 
stantially the  theory  of  the  state  had  freed  itself  from 
the  old  notion  of  sovereignty,  because  in  the  majority 
of  administrative  acts  there  was  no  exercise  of  power 
whatever.  Political  theory  was  unable  to  solve  this 
contradiction  without  denying  its  own  foundation,  the 
notion  of  sovereignty.  Equally  insoluble  was  the  ques- 
tion how  those  "administrative"  tasks  of  the  sovereign 
were  to  be  distinguished  from  these  activities  carried 
on  in  the  name  of  the  state  under  private  law.  The  post- 
office  was  a  branch  of  the  public  service  and  by  anal- 
ogy so  also  were  the  telegraph  and  telephone  adminis- 
trations. But  the  administration  of  railroads  and 
mines  by  the  state  was  something  new.  In  this  case  one 
felt  oneself  to  be  on  uncertain  ground.  The  uncertainty 
became  greater  as  the  field  of  operation  of  local  govern- 
ment became  more  extended.  Markets,  stock  exchanges, 
public  scales,  communication  by  land  and  water,  as  old 


124  THE    MODERN    IDEA  OF   THE   STATE 

institutions,  might  be  regarded  as  belonging  to  the 
public  services.  But  what  about  the  administration  of 
gas-works,  water-works,  bath-houses,  reading-rooms, 
agricultural  banks,  and  all  the  other  activities  which 
had  formerly  been  conducted  by  private  persons  and  for 
which  the  private  law  was  in  force  ?  Could  these  really 
be  called  public  services,  and  if  so,  was  the  local  govern- 
ment then  partly  freed  from  the  rules  of  private  law  ? 
Practice  does  not  preserve  distinctions  merely  for 
the  sake  of  some  theory  and  permits  like  things  to  be 
treated  alike.  If  the  theory  of  the  state  is  freed  from 
the  notion  of  compulsion  attached  to  the  sovereign, 
there  is  no  further  difficulty  in  the  way  of  putting  the 
task  of  administration  in  its  proper  place.  The  most 
ancient  interest  of  the  community,  which  for  centuries 
was  considered  as  almost  the  only  public  interest,  is 
the  preservation  of  order,  peace,  and  security,  and  this 
made  necessary  an  organization  of  agencies  for  the 
exercise  of  power.  We  know  now  that  the  whole  machin- 
ery of  judges,  bailiffs,  wardens,  police,  and  army  is 
rooted  in  a  legal  system  which  prescribes  the  duty  of 
exercising  compulsion  as  a  public  service.  We  know 
also  that  this  implies  no  special  kind  of  authority  and 
that  accordingly  no  sovereign  authority  need  be  imag- 
ined to  care  for  these  interests.  Other  public  interests 
are  gradually  added  to  this  primitive  one.  New  legal 
obligations  are  imposed  and  where  special  systems  of 
law  come  into  existence,  new  powers  appear  not  known 
to  the  ordinary  law.  There  is  no  essential  difference, 
however,  between  the  legal  obligations  imposed  in  the 
two  cases,  any  more  than  there  is  an  essential  dif- 


THE   BASIS  OF  THE   BINDING  FORCE  OF  LAW     125 

ference  between  services  to  the  community  performed 
by  public  agencies  and  those  performed  by  private 
agencies.  All  legal  obligations  have  the  same  basis  and 
must  have  in  order  to  be  legal  obligations.  All  the 
services  required  by  the  interests  of  the  community 
are  public  services,  precisely  because  they  are  thus 
required  and  only  for  this  reason.  And  finally,  it  is  a 
matter  of  complete  indifference  whether  the  powers 
needed  to  care  for  public  interests  are  created  by  the 
ordinary  law  or  by  any  of  the  special  systems  of  law 
called  into  existence  in  behalf  of  these  interests  and 
which  collectively  constitute  the  public  law.  Hence  it 
is  also  a  matter  of  indifference  whether  or  not  these 
powers  are  the  same  as  those  which  private  persons 
may  exercise.  All  these  distinctions,  which  are  now 
disregarded  in  practice,  become  worthless  for  political 
theory  also,  as  soon  as  the  notion  of  an  authority  out- 
side the  law,  the  sovereign,  is  discarded.  In  order  to 
explain  the  extension  of  the  functions  of  the  state, 
therefore,  it  is  not  necessary  to  widen  the  old  concept 
of  sovereignty  to  make  room  for  administrative  activ- 
ities. On  the  contrary,  the  former  functions  of  the 
sovereign  are  to  be  considered  as  part  of  the  public 
administration,  which  in  all  its  aspects  can  be  con- 
ducted only  on  the  basis  of  law  and  in  accordance 
with  either  the  ordinary  law  or  some  special  law. 

To  sum  up,  therefore,  we  can  say  that  one  part  of  the 
legal  system,  that  under  which  the  people  live,  finds 
its  sanction  in  that  branch  of  the  administration  which 
enforces  punishments  and  executions.  Another  part  of 
the  legal  system,  that  which  contains  the  duty  of  per- 


126  THE    MODERN    IDEA   OF   THE   STATE 

forming  all  administrative  tasks,  including  the  one 
just  mentioned,  finds  its  sanction  in  the  personal  advan- 
tages which  those  charged  with  the  administrative 
duty  derive  from  its  performance.  But  there  is  no  sharp 
"clfstinction  between  these  two  sanctions.  The  observ- 
ance even  of  that  part  of  written  law  which  governs 
the  administration  is  often  secured  through  the  force 
of  executions  and  punishments,  but  in  the  last  resort 
the  sanction  of  this  sort  of  law  is  to  be  found  only  in  the 
stimulus  of  the  private  interests  of  administrative  offi- 
cials. On  the  other  hand,  many  legal  duties  which  are 
ultimately  secured  by  executions  and  punishments  have 
an  additional  sanction  in  the  stimulus  of  private  interest. 

Consequently  the  law  makes  use  of  two  agencies  to 
secure  the  performance  of  legal  obligations,  rnrnpy]-- 
sion  and  private  advantage.  Force  is  used  for  fEe  most 
part  where  the  legal  obligations  involve  a  certain  sac- 
rifice of  freedom  and  where  this  sacrifice  is  equal  for 
all  concerned.  When  the  sacrifice  exceeds  this  degree 
or  is  very  unequal,  some  compensation  will  be  needed 
to  insure  the  performance  of  the  obligation. 

Nevertheless  both  these  agencies  fail  to  reach  their 
goal  if  the  real  basis  of  legal  obligation  is  lacking  and  if 
something  is  demanded  which  has  no  support  in  the 
people's  sense  of  right  and  which  therefore  is  not  rec- 
ognized as  having  the  force  of  law.  It  follows  from 
this  that  the  whole  legal  system  under  which  a  people 
lives  finds  the  basis  of  its  authority,  its  binding  force, 
and  its  effectiveness  in  the  operation  of  the  feeling  or 
sense  of  right. 


CHAPTER  IV 

THE    MAKING   OF   LAW 

I.  Law-making  as  an  Intellectual  Process.  So  long  as 
the  idea  of  sovereignty  alone  was  dominant,  it  was  ac- 
cepted as  self-evident  that  the  imperative  character  of 
the  law  was  derived  from  the  sovereign,  whether  it 
were  king,  parliament,  people,  or  state.  Because  of  the 
sovereign's  inherent  right  to  authority,  his  will  was  pos- 
itive law  (Gesetz)  and  as  such  embodied  principles  of 
right  (Recht}.  The  legislator,  therefore,  appeared  as  the 
constructive  sovereign  who  has  called  the  law  into 
existence. 

The  Positive  School  of  Jurisprudence  was  content 
with  this  explanation  of  the  imperative  nature  of  law 
and  of  the  way  in  which  it  originated  or  became  effec- 
tive. What  the  law  might  be  over  and  above  the  will 
and  wisdom  of  the  legislator,  was  regarded  as  belong- 
ing to  the  less  important  fields  of  politics  or  legal  phi- 
losophy. For  "practical"  jurists  law  was  the  command 
of  the  sovereign  and  nothing  more. 

It  followed  from  this  view  that  when  the  sovereign, 
who  was  personified  as  an  imaginary  "legislator,"  had 
not  spoken  there  was  no  law.  But  it  is  impossible  that 
there  should  be  gaps  in  the  law.  Therefore,  howsoever 
the  sovereign  might  have  spoken,  the  law  which  was 
promulgated  by  him  must  be  looked  upon  as  complete, 


128  THE   MODERN   IDEA  OF  THE   STATE 

a  requirement  which  could  be  met  only  by  developing 
the  sovereign's  law  into  a  system  from  which  any  miss- 
ing rules  might  be  derived  by  a  process  of  deduction. 
The  chief  task  of  the  jurist,  therefore,  was  the  construc- 
tion of  a  system  of  ideas  to  be  incorporated  in  the  law 
of  the  sovereign.  Miracles  of  analysis  and  synthesis 
have  been  wrought  in  this  field,  and  for  many  years  this 
satisfied  the  need  of  expanding  the  sovereign's  law  into 
a  legal  system  adequate  to  the  great  variety  of  social 
relationships.  The  law,  therefore,  sprang  from  a  two- 
fold  source.  First,  it  was  derived  from  the  will  of  the 
s^vereigrTTWhich  was  to  be  found  especially  in  the  stat- 
utes. And  second,  it  came  from  the  juristic  system 
which  was  constructed  with  more  or  less  skill  to  fill  in 
the  gaps  in  the  statutes.  It  was  assumed  that  the  leg- 
islator had  developed  his  law  systematically,  though 
without  stating  all  the  details.  The  second  source  of 
law,  the  system,  was  especially  the  product  of  a  purely 
intellectual  process.  The  creation  of  a  system  of  law  is 
indeed  a  strictly  rational  achievment.  And  since  this 
system,  after  it  had  once  been  created,  extended  its 
control  even  over  the  content  of  the  statutory  portion 
of  the  law,  it  followed  that  jurisprudence  operated  in 
the  main  with  rules  which  derived  their  value  particu- 
larly from  their  logical  connection  with  one  another. 
These  rules,  derived  by  purely  rational  methods  and 
marked  by  their  logical  character,  controlled  the  life 
of  society  in  all  its  variety  and  all  its  conflicts.  The 
opinions  of  lawyers,  the  advice  of  notaries,  the  deci- 
sions of  judges  were  all  steeped  in  the  idea  that  the  law 
was  to  be  mastered  only  by  a  series  of  syllogisms. 


THE    MAKING   OF   LAW  129 

Among  jurists,  therefore,  the  supreme  qualification  was 
dialectical  skill ;  and  in  the  court-room,  the  best  chance 
of  winning  his  case  lay  not  with  the  man  who  appealed 
to  the  judge's  sense  of  right,  but  with  the  man  who 
knew  how  to  fill  the  judge's  soul  with  the  logical  beau- 
ty of  the  law  for  which  he  wished  to  gain  a  hearing. 

II.  The  Influence  of  Codification.  This  conception  of 
law,  as  asubstance  produced  by  the  legislator  and  worked 
over   by   the  dialectical  ingenuity  of  the  jurist  into 
a  legal  system  comprehending  all  the  relationships  of 
life,  was  doubtless  strengthened,  though  it  was  by  no 
means  created,  by  codification.  In  the  main  the  law 
taken  over  into  the  codes  had  already  been  worked  to- 
gether into  a  system  by  centuries  of  juristic  manipu- 
lation. Codification  merely  made  it  easier  for  the  jurist 
to  work  toward  the  architectonic  completion  of  the  law 
and  in  fact  he  has  devoted  himself  to  this  task  to  the 
point  of  intellectual  exhaustion.  Indeed  codification 
has  been  recommended  as  a  better  means  for  system- 
making,  and  in  this  respect  it  has  answered  its  pur- 
pose. It  was  also  expected,  however,  that  it  would  make 
the  law  more  accessible  to  the  people.  This  goal  has  not 
been,  and  could  not  be,  achieved,  for  codified  law  was 
jurists'  law  and  has  always  remained,  as  it  still  does, 
mostly  outside  the  layman's  world  of  ideas  and  feel- 
ings. 

III.  The  Revolution  in  Criminal  Law.  This  conceptual 
jurisprudence,  which  derives  the  validity  of  the  law 
from  the  will  of  the  sovereign  and  evolves  its  content 

The  modern  idea  of  the  State.  9 


130  THE   MODERN   IDEA  OF  THE    STATE 

dialectically  into  a  chain  of  concepts,  received  its  first 
serious  setback  in  the  field  of  criminal  law.  The  treat- 
ment of  crime  as  a  juridical  phenomenon  was  so  op- 
posed to  its  social  significance  that  it  brought  clearly  to 
light  the  conflict  between  theory  and  life,  between  the 
positive  law  and  the  fundamental  principles  of  right. 
And  yet  there  is  no  branch  of  the  law  where  the  congeal- 
ing of  social  life  in  constructions,  concepts,  and  analy- 
ses has  proceeded  to  such  a  point  of  artificiality  as  in 
criminal  law.  Social  maladjustments,  though  in  such 
examples  as  theft,  homicide,  and  murder  they  are  as 
old  as  the  world,  are  described  in  the  criminal  statutes 
of  our  time  by  enumeration  of  their  "elements,"  where- 
by criminal  law  loses  all  its  flexibility.  The  responsi- 
bility of  the  culprit  is  a  factor  which  one  would  think 
could  be  determined  only  by  the  aid  of  individual  and 
social  psychology.  But  the  question  is  reduced  by  the 
law  to  certain  juridical  forms,  to  a  limited  number  of 
kinds  of  guilt  and  intention,  by  means  of  which  the  re- 
sponsibility of  the  culprit  and  the  degree  of  his  punish- 
ment are  decided.  Indeed  guilt  is  limited  to  a  number 
of  forms  of  participation  in  the  commission  of  a  crime, 
such  as  being  the  actual  perpetrator  or  being  an  acces- 
sory, inciting  another  to  commit  the  crime,  etc.  Thus 
juristic  mgenuity  must  again  be  urged  to  unfruitful 
intellectual  efforts,  first  to  set  up  concepts  and  then  to 
determine  from  them  who  are  included  in  the  circle  of 
possible  criminals. 

The  recent  tendency  in  criminal  law  indicates  clearly 
that  this  artificial  juristic  apparatus  was  in  no  po- 
sition to  accomplish  the  repression  of  crime  expected 


THE  MAKING  OF  LAW  131 

of  it  and  that  under  these  circumstances  the  question  of 
a  just  repression  could  scarcely  be  raised  because  of  the 
predominance  of  juristic  constructions.  The  newer  ten- 
dency, in  breaking  away  from  juristic  dogmatism,  pro- 
poses that  the  science  of  criminal  law  shall  set  itself  the 
task  of  investigating  the  worth  or  worthlessness  of  the 
individual  as  a  social  being,  disregarding  the  criminal  act 
as  an  occasion  for  juristic  hair-splitting  and  viewing  it 
solely  as  a  symptom  of  a  possible  deficiency  in  the  so- 
cial worth  of  a  particular  person.  Such  a  deficiency  may 
eventually  offer  the  occasion  for  applying  various 
means  in  order  to  guard  against  and  avert  social  malad- 
justments in  the  future.  The  science  of  criminal  law  is 
thus  transformed  from  a  juridical-dogmatic  science 
into  a  science  of  valuations  which  conceives  and  treats 
criminal  law  as  the  result  of  an  appraisal  of  social  in- 
terests. Thus  in  this  field  the  decisive  qualification  for 
both  legislators  and  judges  is  not  a  juridical  intellec- 
tualism,  but  the  ethical  point  of  view  which  lies  at  the 
basis  of  this  appraisal  of  interests. 

IV.  The  Revolution  in  Private  Law.  At  about  the 
same  time,  that  is,  in  the  seventies  of  the  last  century, 
the  lack  of  concord  in  one  notable  respect  between 
legal  concepts  and  actual  life  was  demonstrated  in  the 
field  of  private  law.  Professors  Fockema  Andreae  and 
Hamaker  in  the  Netherlands,  and  particularly  Schloss- 
mann  in  Germany,  proved  that  the  idea  of  contract 
which  was  current  in  legal  science  and  the  actual  con- 
tract recognized  as  binding  in  business  could  not  be 
brought  into  harmony.  According  to  scientific  theory 


132  THE    MODERN   IDEA  OF  THE   STATE 

the  intention  of  parties  with  reference  to  the  agreement 
of  their  wills  (the  meeting  of  minds)  must  coincide.  But 
in  practice  hundreds  of  cases  of  contractual  obligation 
were  recognized  as  binding  in  which  there  was  not  only 
no  proof  of  such  a  coincidence  of  intention,  but  in 
which  the  absence  of  any  psychological  agreement,  or 
meeting  of  minds,  between  the  parties  was  manifest. 
The  rationalistic  jurists  then  as  always  took  the  side  of 
scientific  definition  and  demanded,  quite  in  harmony 
with  the  coercive  tendency  of  conceptual  jurisprudence, 
that  practice  should  conform  to  definition.  But  the  in- 
terests of  business  were  so  opposed  to  this  scholastic 
yoke  that  the  old  theoretical  idea  of  contract  had  to  be 
abandoned.  Obligation  was  admitted  to  exist  wherever 
the  conduct  of  the  parties  in  concluding  an  agreement 
furnished  a  sufficient  reason  for  regarding  them  as 
mutually  bound.  It  accordingly  made  no  difference 
whether  the  legal  act  was  considered  a  contract  or  not. 
This  case  is  significant  because  for  the  first  time  a  right 
based  on  the  value  of  interests  (in  this  case,  business 
interests)  was  decisively  preferred  to  another  principle 
of  law  justified  only  by  its  conformity  to  a  system 
which  had  been  intellectually  incorporated  in  the 
statute. 

This  revolution  in  jurists'  ideas  was  not  accomplished 
as  suddenly  as  might  be  inferred  from  the  account 
given  above.  Ihering  took  the  first  essential  step  in  this 
,  direction  when,  in  the  last  volume  of  his  Geist  des  ro- 
mischen  Rechts,  in  discussing  the  theory  of  law,  he  made 
human  interests  the  crucial  point  instead  of  human 
will.  His  famous  definition  of  rights  as  "legally  pro- 


THE  MAKING  OF  LAW  133 

tected  interests,"  l)  opened  up  in  a  few  words  a  view  of 
the  real  significance  of  law  which  induced  him  to  turn 
his  back  upon  rationalistic  jurisprudence  and  to  seek 
to  bring  legal  science  to  a  higher  plane  than  that  upon 
which  the  Pandects  had  placed  it.  His  Zweck  im  Recht 
embodies  this  attempt,  but  the  pregnant  idea  which 
was  suggested  in  the  earlier  work  of  seeking  the  essen- 
tial content  of  the  law  in  protected  interests  was  not 
fully  developed.  He  was  not  able  to  free  his  mind  from 
the  dialectical  method,  which  he  frequently  used,  al- 
though he  criticized  it.  Consequently  this  work,  so 
great  in  its  conception,  is  filled  with  the  same  dialecti- 
cal gymnastics  which  have  brought  the  "juristic  meth- 
od" into  disrepute.  For  this  reason  it  was  not  able  to 
contribute  to  a  deeper  insight  into  the  true  meaning  of 
law. 

But  Ihering's  "legally  protected  interests"  were  not 
lost,  and  there  gradually  developed  from  this  idea  the 
important  principle  that  the  law  discloses  a  judgment 
of  value  concerning  interests,  that  in  this  judgment  the 
moral  nature  of  man  is  expressed,  and  that,  as  a  con- 
sequence, law-making  is  not  primarily  a  juridical  but 
an  ethical  process. 

V.  The  Influence  upon  Judicial  Decisions.  There  can 
be  no  doubt  as  to  the  influence  of  this  view  upon  the 
courts.  Their  work  was  raised  to  a  higher  plane  when 
the  logical  method  of  establishing  statutory  law  was 
placed  at  the  service  of  that  which  exists  as  living  law 
independent  of  the  statutes.  A  mere  logical  deduction 

»)  Sect.  60,  Ed.  4,  Part  III,  p.  339. 


134  THE   MODERN    IDEA  OF  THE   STATE 

would  no  longer  suffice,  when  the  result  ran  counter  to 
these  living  principles  of  right.  And  so  the  concepts 
and  the  system  were  transformed  until  a  foundation 
was  reached  on  which  the  real  law  could  be  advanced 
by  means  of  the  syllogism.  At  first  the  judge  was  un- 
conscious of  all  this;  instinctively  he  brought  to  the 
front  another  law  than  the  original  statutory  law, 
while  he  imagined  that  he  was  merely  applying  an- 
other means  of  interpreting  the  latter. 1)  Finally  as  a 
result  of  all  this,  jurisprudence  went  so  far  in  giving  va- 
lidity to  rights  other  than  those  of  statutory  law  that 
recognition  of  the  influence  of  the  modified  interpre- 
tation could  no  longer  be  withheld.  This  modified  in- 
terpretation of  law,  however,  has  not  attracted  so 
much  attention  as  the  position  which  the  judge  has 
come  to  occupy  with  respect  to  the  legislator.  Under 
the  mask  of  interpreting  the  statutory  law,  it  was  be- 
lieved that  he  had  begun  to  set  himself  up  as  a  law- 
maker and  so  a  justification  was  sought  for  the  entrance 
of  the  judge  into  a  field  which  was  not  properly  his.  In 
this  way  investigation  was  thrown  upon  a  false  scent. 
For  it  was  not  the  activity  of  the  judge  which  had  un- 
dergone a  change,  but  the  point  of  view  from  which  the 
statutes  were  considered  as  the  source  of  law.  The  judge 
had  begun  long  before  to  apply  unwritten  law,  but 
in  this  he  had  not  transgressed  the  limits  which  in  gen- 
eral are  proper  for  the  judiciary,  viz.,  the  applying  of 
an  already  existing  law  and  not  the  producing  of  a  new 
one.  The  innovation,  therefore,  lies  in  the  fact  that  the 
legislator's  monopoly  of  the  law  is  no  longer  recog- 

l)  Fran9ois  Geny,  Mdthode  d' interpretation,  1899. 


THE   MAKING   OF   LAW  135 

nized.  But  this  view  can  be  maintained  only  on  the  as- 
sumption that  the  rulership  of  law  springs  from  the 
sense  of  right  which  resides  in  men,  in  other  words, 
from  our  moral  impulses  which  react  upon  external 
conduct  and  cause  us  to  subject  the  interests  con- 
cerned in  this  conduct  to  an  evaluation.  By  his  altered 
manner  of  dispensing  justice,  therefore,  the  judge  has 
merely  placed  himself  within  a  much  more  inclusive 
world  of  norms  than  was  the  case  earlier  when  statu- 
tory law  was  supreme.  His  activity  has  remained  the 
same ;  he  has  not  become  a  law-maker.  It  is  quite  com- 
prehensible and  altogether  justifiable  that  the  judge 
has  not  yet  publicly  announced  that  a  newly  discov- 
ered mine  of  law  is  being  worked,  for  a  new  way  of  think- 
ing has  a  better  chance  of  being  accepted  if  it  fits  into 
the  channels  of  thought  to  which  the  circle  affected  is 
accustomed.  And  since  this  circle  is  accustomed  to  es- 
tablish law  by  means  of  logic,  the  modern  judge  works 
continually  with  concepts  and  with  the  system  of  stat- 
utory law,  though  in  reality  he  applies  the  living  prin- 
ciples of  right,  even  when  they  fall  outside  the  statu- 
tory law. 

VI.  The  Idea  of  Sovereignty  and  Constitutional  Law. 
At  the  same  time  that  rationalistic  jurisprudence  was 
being  displaced  in  criminal  and  private  law,  it  was  be- 
ginning its  work  in  the  field  of  constitutional  law.  An 
untilled  field  lay  open  here  which  was  cultivated  by 
Laband  with  unmistakable  talent  in  his  Staatsrecht  des 
deutschen  Reichs,  which  first  appeared  in  1876.  As  a 
result  of  his  work  this  branch  of  the  law  also  was 


136      THE  MODERN  IDEA  OF  THE  STATE 

brought  under  the  yoke  of  a  conceptual  system.  The 
point  of  departure  was,  and  remains,  the  idea  of  sover- 
eignty, i.  e.,  an  extra-legal  competence  to  issue  com- 
mands which  is  exercised  in  the  name  of  the  state.  Since, 
therefore,  ultimate  authority  is  not  found  in  the  law, 
but  on  the  contrary  the  law  derives  its  validity  from 
the  state,  one  cannot  properly  speak  of  a  science  of  the 
law  of  the  state  (constitutional  law),  but  only  of  a  science 
of  the  power  of  the  state  (politics) .  Hence  the  idea  of 
power  permeates  the  constructive  conception  of  the 
state  which  has  been  developed  by  the  juridical  meth- 
od. The  organism  of  army  and  navy  is  a  part  of  the 
state's  power  (military  force) ;  the  finances  form  an- 
other bit  of  power  (financial  authority) ;  the  police  repre- 
sent still  another  (police  power) ;  and  the  administra- 
tion of  justice  makes  still  a  fourth  block  of  power  (ju- 
dicial authority),  etc.  The  state  falls  apart  into  a  se- 
ries of  authorities.  Indeed,  the  legislative  authority  itself 
is  merely  a  part  of  the  state's  power, — that  part,  namely, 
which  regulates  relations  between  parties  and  therefore, 
as  it  is  said,  concerns  itself  with  principles  of  right.  For 
all  these  authorities  there  is  no  common  basis  except 
that  collectively  they  are  to  be  derived  from  the  state. 
According  to  this  mode  of  thinking  the  state  is,  how- 
ever, a  mere  abstraction,  since  reality  lies  in  the  various 
separate  powers,  each  of  which  is  devoted  to  a  specific 
task.  It  is  just  these  tasks,  and  not  the  law,  that  brings 
their  competence  to  light,  since  the  law  has  no  author- 
ity of  its  own.  If  this  premise  were  strictly  main- 
tained, constitutional  law  would  become  a  purely  de- 
scriptive science.  As  a  matter  of  fact,  however,  it  has 


THE  MAKING  OF  LAW  137 

gone  one  step  beyond  this,  and  has  recognized  the  law 
as  a  regulative  power  independent  of  the  state.  Conse- 
quently Laband  could  write  the  words  which  we  have 
quoted  in  our  Introduction :  "The  state  can  require  no 
performance  and  impose  no  restraint,  can  command  its 
subjects  in  nothing  and  forbid  them  in  nothing,  except 
on  the  basis  of  a  legal  prescription."  German  political 
science,  however,  has  not  become  clearly  conscious  that 
in  recognizing  this  it  must  abandon  the  idea  of  sov- 
ereignty, of  the  inherent  authority  of  the  state.  It  has 
maintained  that  idea  with  a  twofold  result.  In  the 
first  place,  political  theory  operates  with  a  dual  au- 
thority. When  there  is  a  definite  statutory  provision, 
the  authority  of  the  law  has  the  upper  hand ;  but  when 
the  law  has  not  been  embodied  in  a  statute,  the  authority 
of  the  state  is  predominant.  In  the  second  place,  the 
assistance  of  juridical  dialectic  must  be  invoked  to  re- 
solve the  contradiction  of  the  twofold  ultimate  author- 
ity, that  of  the  state  and  that  of  the  law.  From  this 
point  of  view  the  fiction  which  has  been  of fered  regard- 
ing the  concept  of  statutory  law  is  extremely  instruc- 
tive. If  the  law  is  assumed  to  be  an  authority  binding 
even  upon  the  state,  the  statute  is  regarded  as  a  rule  of 
right.  If,  however,  the  state  is  assumed  to  be  a  power 
which  endows  the  law  itself  with  binding  authority, 
then  the  statute  must  be  regarded  as  a  regulation  es- 
tablished with  the  co-operation  of  the  representative 
body.  It  follows  that  in  the  first  case  the  force  of  the 
statute  springs  from  its  content  as  a  rule  of  right ;  but 
in  the  second  case  the  force  of  the  rule  of  right  springs 
from  the  fact  that  it  is  embodied  in  a  statute.  This  con- 


138  THE   MODERN   IDEA  OF  THE   STATE 

flict  is  concealed  by  taking  refuge  in  the  distinction  be- 
tween a  formal  and  a  material  meaning  of  the  word 
statute.  Thus  the  attempt  is  made  to  justify  the  use 
of  the  word  as  meaning  both  a  form  of  expressing  the 
state's  authority  and  a  rule  of  right.  In  the  seven- 
ties of  the  last  century,  Laband  used  the  freedom  thus 
obtained  to  champion  the  financial  independence  of 
the  government  against  the  representative  body  in  con- 
nection with  the  conflict  over  the  budget  which  some 
years  earlier  had  been  waged  between  Bismarck  and 
the  Prussian  Landtag.  Thus  the  budget  was  said  to  be 
a  statute  in  a  formal  sense,  but  in  its  proper  or  material 
significance  it  was  to  be  considered  an  administrative 
ordinance  which  in  principle  fell  under  the  competence 
of  the  government.  And  then  this  ambiguous  distinc- 
tion was  gradually  extended  over  the  whole  field  of 
constitutional  law  in  all  German  treatises,  thereby  con- 
cealing the  double  premise  of  state  authority  and  le- 
gal authority. 

The  principle  that  in  constitutional  monarchies  the 
king  is  the  single  and  exclusive  bearer  of  the  state's 
authority  is  another  proposition  that  smacks  of  politics. 
Through  this  fiction  the  significance  of  the  representa- 
tive body  in  connection  with  law-making  is  falsified, 
and  at  the  same  time,  especially  in  countries  with  par- 
liamentary governments,  the  role  which  the  king  plays 
in  this  function  is  completely  misconstrued. 

There  is  another  respect  in  which  the  unreality  of 
juristic  dialectic  affects  constitutional  law.The  funda- 
mental principles  of  this  law  are  formulated  in  a  con- 
stitution which  can  be  revised  only  by  a  different  and 


THE   MAKING   OF  LAW  139 

more  elaborate  procedure  than  is  required  for  other 
legislation.  Consequently  it  is  much  harder  to  make 
needed  changes  in  constitutional  law  than  in  other  pos- 
itive law.  Thus,  as  has  been  shown  above,  these  changes 
are  made  by  an  extra-legal  process,  since  an  un- 
written law  develops  as  the  result  of  the  unorganized 
sense  of  right.  But  German  political  science  refuses  to 
take  account  of  such  a  means  of  legal  development, 
because  it  recognizes  no  other  kind  of  law  than  the  law 
of  the  sovereign.  Consequently  the  law  must  be  found  in 
the  constitution.  And,  in  fact,  this  law  is  found  in  the 
constitution,  if  one  only  understands  the  art  of  distort- 
ing the  prescriptions  of  the  constitution  or  of  so  trans- 
forming their  sense,  by  means  of  adroit  dialectic,  that 
the  new  unwritten  law  can  parade  as  constitutional 
law.  Numerous  examples  of  this  method  are  to  be 
found  in  Holland,  as  we  have  shown  in  another  work. 
Here  also  adherence  to  the  idea  of  sovereignty  leads  to 
the  falsification  of  a  part  of  the  written  law  and  also 
gives  countenance  to  the  belief  that,  by  exercising  the 
necessary  intellectual  ingenuity,  one  can  manipulate 
the  law  at  pleasure.  But  this  juristic  intellectualism 
robs  the  law  of  all  its  ethical  value,  and  the  science 
which  lends  its  authority  to  such  a  method  is  guilty  of 
a  pernicious  error. 

VII.  The  Idea  of  Sovereignty  in  Administrative  Law. 
Not  less  confusing  to  an  insight  into  the  real  course  of 
affairs  is  the  adherence  to  the  idea  of  sovereignty  in  the 
field  of  administrative  law.  This  branch  of  the  law  is 
not  regarded  as  a  complex  of  rules  representing  the  re- 


140      THE  MODERN  IDEA  OF  THE  STATE 

sultant  of  a  valuation  of  interests,  -  -  other  interests 
perhaps  than  those  regulated  by  private  law.  On  the 
contrary,  the  idea  of  sovereignty  destroys  the  essen- 
tial unity  of  the  law  by  introducing  a  fundamental  dis- 
tinction between  private  and  public  law.  A  certain 
preference  in  the  eyes  of  the  law  is  ascribed  to  the  in- 
terests of  the  sovereign  as  against  those  of  citizens,  just 
because  they  are  the  interests  of  the  sovereign.  Thus 
legal  relationships  in  this  field,  unlike  those  in  private 
law,  have  not  been  constructed  upon  the  assumption  of 
the  equal  value  of  interests  in  the  eyes  of  the  law. 
Hence  the  importance  of  administrative  law  does  not 
consist  in  recognizing  the  legal  value  belonging  to  public 
interests,  but  rather  in  a  limitation  of  the  superior  val- 
ue which  these  interests  originally  possessed.  Thus  in 
principle  the  sovereign  derives  his  competence  not 
from  the  law,  but  from  the  fact  that  he  is  the  sover- 
eign. It  follows  from  this  that  independently  of  the 
law  the  sovereign  may  foster  public  interests  by  any 
means,  even  by  limiting  the  freedom  of  the  citizens,  in 
so  far  as  he  has  not  been  forbidden  to  do  this  by  the 
law  (that  is,  by  the  statutes). 

In  another  work  x)  we  have  shown  that  the  distinc- 
tion in  principle  between  public  and  private  law  is 
untenable.  Independently  the  same  point  has  been 
strongly  emphasized  by  Van  Idsinga  in  the  Nether- 
lands, and  by  Ehrlich,  2)  Weyr,  3)  and  Hans  Kelsen.  •) 

1)  Lehre  der  Rechtssouverdnitdt,  1906. 
*)   Theorie  der  Rechtsquellen,  1902. 

*)  "Zum  Problem  eines  einheitlichen  Rechtssystems,"  Archiv  tiir 
offentliches  Recht,  Vol.  XXIII,  1908,  p.  529. 
•)  Hauptprobleme  der  Staatsrechtslehre,   1911. 


THE   MAKING   OF   LAW  141 

This  distinction  stands  or  falls  with  the  idea  of  sover- 
eignty. Our  present  work  offers  a  thorough-going 
cricticism  of  the  idea  of  sovereignty  as  the  corner-stone 
of  constitutional  law.  Therefore  we  need  not  explain 
again  the  misunderstanding  of  the  nature  of  adminis- 
trative law  which  is  connected  with  this  idea.  Accord- 
ing to  the  modern  idea  of  the  state,  which  recognizes 
no  other  authority  than  that  of  law  and  leaves  no  place 
for  a  self- justified  sovereign,  there  is  no  distinction  in 
principle  between  administrative  law  and  private  law. 
The  former  evaluates  other  interests  than  those  which 
the  latter  appraises ;  in  both,  however,  a  preference  for 
any  given  interest  can  spring  only  from  a  legal  valua- 
tion. Thus  we  stand  upon  the  firm  basis  of  reality, 
which  knows  no  authorities  and  no  preferred  interests 
standing  outside  the  law. 

Otto  Mayer's  Deutsches  Verwaltungsrecht  is  the  clear- 
est example  of  the  way  in  which  this  "right  to  author- 
ity" standing  outside  the  law  is  treated  under  the 
guidance  of  the  idea  of  sovereignty.  In  this  work  au- 
thority has  become  a  substance  which  can  be  disposed 
of  as  if  it  were  a  piece  of  real  estate.  Let  the  reader 
judge  for  himself:  "Within  its  territory  the  state  is 
the  sole  source  of  public  authority ;  all  other  power,  to 
whomsoever  it  may  be  attributed,  is  derived  from  the 
state  alone,  is  a  power  emanating  from  the  public  authority 
of  the  state."1)  And  again :  "A  part  of  the  public  authority, 
an  exercise  of  power  belonging  to  this  authority,  is  de- 
tached and  placed  in  the  hands  of  the  subject,  so  that 
he  may  be  master  of  it  and  may  use  it  for  himself,  in 

*)  Vol.  I,  p.  112. 


142      THE  MODERN  IDEA  OF  THE  STATE 

his  own  name  and  for  his  own  interest."  x)  This  is  the 
spirit,  —  and  it  reappears  with  only  verbal  changes  in 
the  second  edition  (1914),  —  in  which  German  admin- 
istrative law  is  set  forth,  and  thus  jurists  are  initiated 
into  a  public  law  which  may  be  asserted  throughout  to 
be  an  alternation  between  concepts  which  have  no 
reality  and  terms  drawn  from  an  obsolete  political 
theory.  For  example,  in  the  treatment  of  property  in 
public  law  we  find  the  following  definition :  It  is  such 
a  control  over  a  thing  "that  the  public  administration, 
as  such,  is  identified  with  this  control ;  the  control,  in- 
stead of  serving  as  a  means  to  public  administration, 
actually  embodies  public  administration."  2)  But  what 
has  the  law  to  do  with  the  control  over  a  thing,  and 
what  fruitful  idea  is  contained  in  the  notion  of  a  thing 
which  embodies  the  public  administration  ?  The  use  of 
terms  drawn  from  an  obsolete  political  theory  may  be 
seen,  among  other  examples,  in  the  maintenance  of  the 
opposition  between  the  legislative  and  executive  au- 
thorities, each  of  which  is  equipped  with  special  "pow- 
ers" and  "characteristics."  Thus  the  "pre-eminence" 
of  statute,  the  "reservations"  in  favor  of  statute  as 
against  executive  power,  and  the  "binding  force"  of 
statute  are  set  over  against  the  "mode  of  origin,"  the 
"capacity  to  act,"  and  the  "possibility  of  being  legally 
bound"  of  the  executive  authority.  3)  The  powers  and 
characteristics  of  the  executive  and  legislative  author- 
ities are  treated  under  these  obsolete  categories  without 


')  Ibid.,  p.  114. 

2)  Ibid.,  Vol.  II.,  p.  74. 

»)  Ibid.,  Vol.  I,  p.  71,  and  Vol.  I,  (Ed.  2),  pp.  65  ff. 


THE   MAKING   OF  LAW  143 

any  inner  connection.  Such  a  work  as  this,  which  in  its 
fundamental  ideas  deals  with  trivialities  in  a  thoroughly 
scholastic  and  dialectical  fashion,  offers  a  disheart- 
ening example  of  rationalistic  jurisprudence  in  the 
field  of  public  law. 

VIII.  The  Hybrid  Character  of  the  Systems  of  Consti- 
tutional and  Administrative  Law.  It  can  scarcely  be 
denied  that  a  fundamental  clarifying  of  ideas  is  needed 
in  the  field  of  administrative  law  no  less  than  in  that 
of  constitutional  law.  This  is  possible,  however,  only 
if  the  idea  of  the  state  is  sought  not  in  the  authority 
of  a  sovereign  but  in  the  authority  of  law,  and  if  the 
hybrid  character  of  both  systems  of  law  is  abandoned. 
The  old  political  theory  which  preceded  the  appear- 
ance of  the  theory  of  the  legal  state  (Rechtsstaat]  oper- 
ated exclusively  with  the  idea  of  sovereignty  and  there- 
fore with  authorities  established  by  nature.  But  in  this 
it  was  at  least  logical  and  did  not  demand  that  the 
sovereign  should  subject  himself  to  law.  So  far  as  the 
rulership  of  law  was  recognized,  there  was  indeed  no 
sovereign  but  something  different,  the  state-fisc.  It  is 
true  that  it  might  be  argued  against  this  theory  that 
it  proceeded  from  a  twofold  conception  of  the  state; 
but  once  this  duality  was  recognized,  the  relationship 
of  the  state  to  law  was  clear  and  definite. 

The  theory  of  the  legal  state  brought  out  the  idea  that 
the  sovereign  also  is  subject  to  the  law.  But  this  idea  in- 
troduced the  greatest  confusion  into  political  theory, 
since  now  two  authorities,  the  law  and  the  sovereign,  are 
in  conflict.  If  the  idea  of  sovereignty  is  maintained  in 


144  THE    MODERN   IDEA  OF  THE   STATE 

its  integrity,  i.e.,  the  idea  of  a  source  of  authority 
standing  outside  the  law,  it  is  impossible  to  explain  the 
subordination  of  the  sovereign  to  the  law.  If  the  law 
is  recognized  as  an  ultimate  source  of  authority,  it  is 
not  permissible  to  maintain  the  idea  of  sovereignty. 
Nevertheless  both  ideas  are  maintained,  with  the  nec- 
essary consequence  that  neither  constitutional  nor 
administrative  law,  lacking  a  secure  starting-point,  is 
capable  of  being  reduced  to  a  system.  Sometimes  pow- 
ers, like  those  of  the  police  and  the  army,  are  derived 
from  the  authority  of  the  sovereign;  sometimes,  and 
especially  in  the  case  of  the  ordinary  business  of  admin- 
istration, the  law  is  invoked  as  the  basis  of  power. 

Constitutional  and  administrative  law  can  be  res- 
cued from  this  morass  only  by  returning  to  the  old  po- 
litical theory  of  the  police  state  or  by  going  forward  to 
the  new  political  theory  which  accepts  no  authority 
as  valid  except  that  of  the  law.  A  compromise  is  im- 
possible ;  and  since  political  fact  has  outgrown  the  the- 
ory of  the  police  state,  the  actual  course  of  affairs  can 
be  understood  and  guided  only  by  holding  fast  to  the 
one  title  to  authority  which  has  survived  the  overthrow 
of  sovereignty,  viz.,  that  of  the  law.  If  this  is  done,  all 
those  authorities  which  fill  the  literature  and  which 
still  survive  in  words  as  relics  of  the  police  state  will  be 
dissolved  into  a  complex  of  rights  and  duties  evoked 
in  behalf  of  various  public  interests  by  the  action  of  the 
social  sense  of  right,  either  organized  or  unorganized. 
This  sense  of  right  is  a  real  authority  and  the  only  real 
authority,  because  obedience  to  its  commands  is  not 
imposed  by  constraint  but  is  freely  given. 


THE   MAKING   OF  LAW  145 

IX.  The  Logical  Consequences  of  the  Old  and  New 
Political  Theories.  The  opposition  in  principle  between 
the  old  and  the  new  theories  of  the  state  and  of  law 
gives  rise  to  numerous  consequences  which  in  conclu- 
sion we  shall  summarize  under  five  points. 

A.  The  Binding  Force  of  Law.  The  old  concept  of  the 
state  and  of  the  law  required  a  sovereign  placed  over 
against  the  people  in  order  that  the  law  might  be  valid. 
This  sovereign  established  the  law  for  all  those  who 
were  subject  to  his  authority,  and  in  consequence  there 
could  be  no  other  law  than  that  of  the  sovereign.  Now 
the  law  is  admitted  to  be  a  norm  which  gets  its  binding 
force  from  the  spiritual  nature  of  man,  viz.,  from  his 
sense  of  right.  With  this  view  the  sovereign  disappears 
as  a  source  of  law  from  both  legal  and  political  theory. 

B.  The  Monopoly  of  Law.  Under  the  domination  of 
the  idea  of  sovereignty,  the  law  was  formerly  monopo- 
lized by  the  sovereign.  In  case  there  were  gaps  in  the 
statutes,  one  had  to  take  refuge  in  the  notion  of  an 
omniscient  legislator  in  whose  subconsciousness  numer- 
ous rules  were  concealed  which  might  be  brought  to 
light  by  means  of  dialectic.  At  the  present  time  the 
field  controlled  by  statutory  law  is  limited  to  those  in- 
terests which  actually  lay  within  the  ken  of  the  legis- 
lator at  the  time  the  statute  was  enacted,  and  to  these 
interests  only  in  so  far  as  they  were  envisaged  by  him. 
On  the  other  hand,  the  unwritten  law  supplies  the  rule 
for  all  other  interests  and  cases.  This  unwritten  law  is, 
indeed,  the  result  of  the  same  process  which  lies  at  the 
basis  of  legislation;  the  latter  represents  merely  the 
action  of  the  organized  sense  of  right.  In  this  process 

The  modern  idea  of  the  State.  10 


146      THE  MODERN  IDEA  OF  THE  STATE 

the  valuation  of  interests  which  the  legislator  has  not 
acted  upon,  or  has  only  partially  regulated,  is  of  the 
same  kind  and  takes  place  according  to  the  same 
standard  as  in  the  case  of  matters  openly  settled  in 
parliament. 

C.  The  Continuance  of  Validity.  Formerly  the  statute 
had  unlimited  validity.  If  the  sovereign  had  not  ex- 
pressed his  will  to  the  contrary,  the  statute  was  enforced, 
though  it  had  to  be  accompanied  with  the  pious  ejacu- 
lation, lex  dura  sed  ita  scnpta,  and  obedience  was  de- 
manded though  it  was  not  always  accorded.  At  the 
present  time,  it  is  perceived  that  the  basis  for  the 
validity  of  statutory  law  lies  in  a  valuation  of  inter- 
ests, which  is  not  made  merely  on  occasion  within  the 
walls  of  the  parliament  house;  the  citizenship  in  the 
full  circle  of  its  social  life  is  continually  participating 
in  this  valuation  by  applying  the  standard  of  its  legal 
convictions  to  various  interests,  even  to  those  which 
have  already  been  appraised  in  the  written  law.  Conse- 
quently the  entire  mass  of  the  law  is  a  living  organism, 
whose  parts  die  or  are  renewed  when  other  legal  con- 
victions come  into  control  than  those  which  prevailed 
when  the  statute  was  enacted  or  the  law  created.  It  is 
a  living  process  whose  development  no  power  in  the 
world  can  check.  It  is  true  that  for  a  certain  period  the 
original  life  can  be  artificially  maintained.  Something 
which  elicits  no  response  from  the  people  may  be  tem- 
porarily preserved  as  a  force  in  social  life.  But  the 
utmost  efforts  in  this  direction  accomplish  nothing 
except  that,  when  the  tension  between  statute  (Gesetz) 
and  right  (Recht)  has  become  sufficiently  acute,  the 


THE   MAKING   OF  LAW  147 

existing  order  is  disrupted  by  a  re  volution.  Thus  the  le- 
gal convictions  whose  authority  was  denied  recognition 
in  a  normal  fashion  are  nevertheless  made  effective. 

D.  The  Interpretation  of  Statutory  Law.  So  long  as 
the  law  was  regarded  as  a  product  of  sovereign  author- 
ity, the  purpose  of  the  legislator  was  deemed  an  impor- 
tant consideration  in  fixing  the  content  of  the  law. 
Accordingly  every  means  was  employed  to  trace  out 
this  purpose  in  order  that  it  might  serve  as  a  guide  in 
interpreting  the  statute.  At  the  present  time  we  know 
that  if  the  statutory  law  is  allowed  to  retain  the  force 
it  was  originally  intended  to  have,  the  legal  convictions 
of  earlier  generations  frequently  remain  in  force  though 
the  present  generation  no  longer  feels  them  to  be  valid. 
The  real  basis  for  the  rulership  of  law  is  thus  under- 
mined, and  also  the  right  of  every  generation  to  live  ac- 
cording to  its  own  ideas  of  right,  its  own  legal  convic- 
tions. In  the  latter  case  it  is  not  out  of  place  to  speak 
of  a  right  which  is  born  with  us.  The  present  belongs 
to  us  completely  and  wholly.  We  repudiate  entirely  an 
appeal  to  the  judgment  of  history.  When  a  higher 
sanction  is  sought  by  means  of  this  appeal  for  a  law 
which  no  longer  reflects  the  vital  convictions  of  the 
people  (as,  for  example,  when  it  is  said  that  God  reveals 
himself  in  history),  this  is  preaching  submission  when 
resistance  ought  to  be  urged.  Resistance  is  necessary 
to  liberate  our  feelings,  thoughts,  and  wills  from  the 
yoke  of  history  and  tradition,  which  hinder  the  birth 
of  a  matured  spiritual  life. 

E.  Judicial  Decisions.  Finally  the  new  political  and 
legal  theory  places  the  work  of  the  courts  in  another 


148  THE   MODERN   IDEA  OF  THE    STATE 

light.  As  in  the  case  of  law-making,  rationalistic  juris- 
prudence has  never  seen  anything  in  judicial  decisions 
beyond  an  employment  of  the  intellect.  The  chief  re- 
sult of  this  was  to  deduce  the  law  for  each  concrete 
case  from  the  statute  by  a  logical  method.  Just  as  the 
rule  derived  its  importance  from  the  place  which  it 
occupied  in  the  "system,"  and  thus  had  primarily  a 
logical- juridical  value,  so  the  judicial  decision  by  which 
the  rule  was  applied  was  the  product  of  intellectual 
activity  and  reducible  to  a  syllogism. 

The  work  of  judicature  assumes  an  entirely  different 
aspect,  however,  when  one  accepts  the  view  that  the 
statute  is  merely  a  part  of  the  living  law  and  that  all 
law  is  to  be  looked  upon  as  the  result  of  an  evaluation 
of  interests.  Even  when  one  takes  the  rule  embodied  in 
the  statute  as  a  starting-point,  its  adjudication  is  still 
infinitely  more  than  syllogistic  deduction,  since  this 
norm  contains  a  judgment  about  a  conflict  between 
interests  abstractly  conceived.  The  judge  has  to  decide 
the  same  conflict,  but  between  concrete  interests,  and 
accordingly,  even  with  reference  to  the  prescriptions 
given  in  the  statutes,  he  has  to  undertake  a  new  weigh- 
ing of  interests.  And  this  is  not  primarily  a  purely 
intellectual  operation.  Like  the  work  of  the  legislator 
which  precedes  it  and  which  culminates  in  it,  it  is  an 
ethical  function. 

From  this  point  of  view,  the  decisions  of  the  courts 
have  a  special  significance  when  the  statute  is  silent 
and  the  judge  has  to  take  refuge  in  the  rules  of  un- 
written law.  Obviously  one  cannot  speak  of  finding  the 
law  in  such  a  case,  if  the  judge  merely  has  to  take  the 


THE    MAKING    OF   LAW  149 

rules  out  of  the  storehouse  of  the  "system."  In  this  case 
a  certain  juridical  ability  to  scent  the  trail,  guided 
where  necessary  by  the  feeling  for  right,  is  essential  but 
the  feeling  for  right  is  not  the  decisive  element  in  the 
judgment.  Once  the  judge  is  freed  from  this  intellec- 
tualized  law  deduced  by  syllogistic  methods  from  the 
statute,  and  once  he  sees  the  ethical  significance  of  the 
law  as  a  decision  in  a  conflict  of  interests,  he  must, 
when  the  law  is  wholly  or  partly  silent,  take  account  of 
the  unorganized  sense  of  right  within  the  social  circle 
where  the  conflict  of  interest  occurs  and  must  render 
his  judgment  in  accordance  with  the  unwritten  law  so 
discovered.  This  does  not  mean  that  the  judge  under- 
takes the  work  of  law-making;  we  have  already  dis- 
cussed this  erroneous  view.  l)  The  judges  are  fulfilling 
this  task  in  increasing  measure,  though  it  may  be  se- 
cretly, because  the  prevailing  convictions  are  still  too 
seriously  opposed  to  it.  From  all  this  it  is  quite  clear 
that,  at  least  in  the  field  of  private  law,  the  domination 
of  the  law  of  the  sovereign,  with  its  baneful  consequence 
of  an  intellectualized  law,  has  given  place  to  a  view 
which  regards  the  law  as  an  ethical  force  and  is  re- 
solved to  put  it  into  effect  as  such. 


*)  Supra,  pp.  134  f. 


CHAPTER  V 

INTERESTS   AND   THE   SENSE   OF  RIGHT 

I.  Knowledge  of  Interests  and  Impartiality.  Whoever 
is  engaged  in  law-making  must  satisfy  two  require- 
ments. — — 


In  the  first  place,  it  is  necessary  to  have  a  knowledge 

Jboth  of  the  interests  to  whose  advantage  a  legal  value 

is  to  be  tixed  and  also  of  the  interests  at  whose  expense 

this  value  is  to  be  set  up.  The  legal  value  of  an  interest 

is  revealed  especially  in  the  curtailing  of  the  social 

'FT 

force  of  some  other  interest  with  which  it  conflicts. 
Before  progress  can  be  made  in  fixing  this  curtailment, 
it  is  necessary  that  the  content  of  both  interests  be 
investigated  and  that  the  needs  of  each  be  considered. 

In  the  second  place,  it  is  deemed  necessary  for  law- 
making  that  the  sense  of  right  which  undertakes  to 
evaluate  interestriThould  b*»  pHfifjf*  *'"  Q  r^tlf]n  nf 
impartiality.  Whoever  is  engaged  in  law-making  ought 
to  experience  no  personal  advantages  or  disadvantages 
from  the  limitation  of  freedom  which  results  from  set- 
ting up  a  legal  rule.  The  sense  of  right  which  is  to  bring 
about  a  solution  of  a  conflict  of  interests  must  be  kept 
as  pure  as  possible  and  must  be  kept  free  from  any- 
thing which  might  be  able  to  limit  its  full  effectiveness. 

Of  these  two  requirements  it  is  the  latter  which  is 
chiefly  kept  in  view ;  and  accordingly  we  find  numerous 


INTERESTS  AND  THE   SENSE   OF  RIGHT  151 

attempts  in  political  theory  to  realize  what  we  might 
call  the  legislator  without  interests,  while  the  other 
requirement,  that  the  legislator  ought  to  understand 
the  pertinent  social  interests,  is  more  or  less  neglected. 
We  shall  review  in  turn  the  more  important  of  these 
attempts. 

II.  The  Platonic  Ideal.  The  oldest  and  at  the  same 
time  the  most  celebrated  theory  of  a  legislator  without 
interests  is  found  in  Plato's  Republic,  where  this  prob- 
lem, though  not  formulated  in  so  many  words,  is  the 
point  chiefly  emphasized.  Plato  sought  to  secure  the 
purest  possible  sense  of  right  by  means  of  the  radical 
requirement  of  a  communistic  mode  of  life  for  the 
ruling  class.  The  rulers  might  have  no  wives  of  their 
own,  no  children  of  their  own,  no  property  of  their 
own,  in  order  that  they  might  remain  free  from  all 
cares  and  interests.  All  factors  which  might  disturb  the 
exercise  of  a  rational  rulership  were  as  far  as  possible 
to  be  excluded.  Thus  Plato  accepts  the  same  argument 
as  that  advanced  for  the  celibacy  of  priests,  viz.,  that 
those  who  devote  themselves  to  the  moral  perfection 
of  men  must  be  free  from  all  personal  interests. 

The  Platonic  ideal  attempts  to  overcome  the  self- 
interest  of  the  ruler  by  an  external  means,  that  is, 
through  a  destruction  of  interests.  This  idea  is  not 
without  value  for  our  own  time.  At  present  there  are 
many  who  have  a  share  in  law-making  who  are  ruled 
by  self-interest  and  scarcely  take  account  of  other  in- 
terests than  their  own;  they  seek  to  make  legislation 
serve  the  purpose  of  improving  their  own  economic 


152  THE    MODERN    IDEA   OF   THE    STATE 

condition.  Is  it  not  reasonable  that  with  a  change  in 
these  external  circumstances  and  with  a  partial  disap- 
pearance of  the  economic  factors  which  influence  their 
sense  of  right,  they  will  arrive  at  a  more  impartial  val- 
uation of  rights?  Indeed  is  not  this  already  taking 
place  ?  Plato's  thought  is  thus  given  a  different  appli- 
cation. The  ruler  is  to  be  brought  to  a  mental  condition 
suitable  to  law-making  not  by  suppressing  his  needs 
but  by  satisfying  them.  With  the  disappearance  of 
material  cares,  effort  can  be  directed  toward  ideal  ends, 
and  this  actually  does  happen  in  many  cases. 

III.  Monarchy.  In  the  same  realm  of  ideas  belongs 
the  interpretation  of  monarchy  as  an  institution  which 
might  furnish  us  with  a  sense  of  right  free  from  the  in- 
fluence of  the  social  interests  to  be  evaluated.  What  is 
proposed  in  this  connection  is  certainly  not  the  re-estab- 
lishment of  absolute  monarchy,  but  rather  the  reten- 
tion or  revival  of  the  constitutional  competence  of  the 
king  to  share  equally  with  the  representative  body  in 
law-making.  Thus  after  the  decision  of  the  represent- 
ative body,  it  would  still  be  possible  to  appeal  to  a 
sense  of  right  free  from  all  the  interests  concerned. 
Such  a  sense  of  right  is  to  be  found  in  monarchy,  be- 
cause here  a  family  is  elevated  above  society  and  is 
given  a  preferred  status  with  reference  to  honors  and 
property;  it  therefore  occupies  a  supersocial  position 
which  enables  it  to  intervene  in  the  conflict  of  social 
interests  with  the  greatest  possible  impartiality. 

On  its  face  this  argument  is  conclusive.  It  is  a  fact, 
however,  that  monarchies  disappear  and  that  where 


INTERESTS  AND  THE   SENSE   OF  RIGHT  153 

they  do  continue,  the  veto  power  of  the  king  loses  its 
force  under  the  parliamentary  system.  Even  where  the 
monarch's  authority  still  possesses  constitutional  im- 
portance, as  until  recently  in  the  German  states,  the 
opposition  to  such  a  sense  of  right,  standing  as  it  does 
altogether  outside  the  people,  is  daily  gaining  strength. 
And  all  these  facts  make  this  solution  of  the  conflict 
between  interest  and  law  to  appear  of  doubtful  value. 
The  history  of  monarchy,  in  view  of  the  record  which 
it  made  when  it  was  called  upon  in  the  eighteenth  cen- 
tury to  introduce  reforms  in  the  law,  affords  no  assur- 
ance that  this  institution  has  grown  equal  to  the  task 
which  it  would  have  to  perform.  Now  as  then,  the  king, 
because  he  stands  outside  the  life  of  society,  is  lacking 
in  real  knowledge  of  social  interests.  To  be  sure,  it 
may  seem  that  this  knowledge  could  be  given  him  by 
the  representative  body  or  by  others,  but  even  then  he 
would  have  at  best  only  a  theoretical  knowledge  of 
these  interests.  He  would  not  be  able  to  experience 
directly  the  importance  of  interests,  or  to  value  them 
at  their  just  worth,  for  too  great  a  distance  separates 
him  from  the  needs  and  wants  which  are  involved. 
In  monarchy  there  is  perhaps  a  legislator  without  in- 
terests ;  but  for  law-making,  there  is  required,  besides 
impartiality,  also  an  insight  into  social  interests,  and 
this  monarchy  lacks.  And  this  deficiency  cannot  be 
supplied  without  jeopardizing  the  impartiality  which 
is  monarchy's  main  claim  to  consideration.  The  course 
of  events,  therefore,  has  pushed  this  institution  more 
and  more  into  the  background.  And  this  process  is 
hastened  by  the  fact  that,  while  the  impartiality  which 


154  THE   MODERN   IDEA  OF  THE   STATE 

recommends  it  is  a  characteristic  of  the  institution,  it 
is  by  no  means  always  a  characteristic  of  the  individual 
who  bears  the  royal  dignity.  The  sense  of  right  which 
determines  what  the  law  shall  be  may  be  a  blessing  or 
a  curse  for  the  interests  of  the  country  and  the  people. 
That  this  sense  of  right  should  depend  upon  the  acci- 
dent of  birth  belongs  to  an  order  of  ideas  which  is  no 
longer  defensible  when  a  general  effort  is  being  made 
to  exclude  accident  as  a  power  regulating  the  appor- 
tionment of  rights.  When  it  is  remembered,  moreover, 
that  an  adjustment  to  the  people's  sense  of  right  is 
needed  to  make  the  law  effective  as  an  ethical  force, 
it  is  impossible  to  grant  decisive  authority  to  a  sense 
of  right  whose  agreement  with  the  convictions  of  the 
people  is  throughout  uncertain. 

IV.  The  Intellect.  It  has  been  believed  that  the  way 
to  secure  a  legislator  without  interests  is  to  give  a  free 
scope  to  the  intellect.  Considered  from  the  standpoint 
of  impartiality  this  solution  appears  very  attractive. 
Thought  and  reflection,  it  may  be  believed,  bring  men 
to  a  condition  of  low  sensitivity  which  closely  approaches 
impartiality.  Men  of  intellectual  endowments  are  less 
emotional  than  others.  Deliberateness  in  decision  is  par- 
ticularly to  be  expected  from  a  mind  which  is  ruled 
by  the  understanding. 

In  order  that  the  understanding  may  get  the  upper 
hand,  it  is  necessary  to  institute  a  parliament  in  which 
the  thinking  part  of  the  population,  the  intellect  of  the 
nation,  is  represented.  And  the  suffrage  must  accord- 
ingly be  so  arranged  that  the  elected  parliament, 


INTERESTS   AND   THE    SENSE   OF   RIGHT  155 

when  it  assembles,  will  be  one  in  which  reason  and 
understanding  bear  the  scepter.  The  results  of  this  line 
of  thought  upon  the  representative  system  may  best 
be  seen  in  the  writings  of  Guizot,  who  will  serve  as  a 
type  of  the  tendency  under  discussion. 

According  to  Guizot,  the  citizens  can  be  divided  into 
three  groups.  The  first  consists  of  those  who,  as  a 
result  of  their  social  position,  enjoy  sufficient  leisure 
to  be  able  to  devote  themselves  to  the  general  welfare. 
"Their  leisure  permits  them  to  devote  themselves  al- 
most exclusively  to  the  cultivation  of  their  intellect, 
to  the  study  of  general  purposes,  relations,  and  inter- 
ests." Next  to  these,  whom  we  may  call  the  men  of  the 
study,  stand  the  entrepreneurs,  those  engaged  in  direct- 
ing industry.  These  must  be  well  informed  about  cur- 
rent social  changes  on  account  of  their  business,  and 
must  therefore  interest  themselves  also  in  political 
and  social  questions.  They  are  "the  men  whom  their 
business  obliges  to  acquire  knowledge  and  ideas  which 
raise  them  uniformly  to  an  understanding  of  general 
relations  and  interests."  The  third  group  finally  in- 
cludes the  manual  laborers.  "Their  work  prevents  them 
from  going  beyond  the  narrow  circle  of  their  individual 
interests,  limited  to  the  satisfaction  of  the  needs  of 
life."  Of  these  three  groups,  Guizot  thinks  the  first 
and  second  should  be  given  the  suffrage,  but  it  should 
be  withheld  from  the  manual  laborers,  "limited,"  as 
they  are,  "to  the  satisfaction  of  the  needs  of  life."  The 
non-intellectual  part  of  the  population  is  thus  sifted 
out  of  society  and  only  the  intellect  is  left.  Moreover, 
the  process  of  selection  secures  the  advantage  that  the 


156  THE    MODERN    IDEA   OF   THE    STATE 

interests  of  the  working  class  are  cared  for  by  a  repre- 
sentative body  whose  members  are  not  under  the  in- 
fluence of  the  selfish  interests  of  that  class,  and  there- 
fore constitute  a  peculiarly  impartial  organ  of  legisla- 
tion for  these  interests. 

Until  about  the  eighties,  —  in  the  era  of  liberalism, 
-  this  view  was  dominant  in  practical  and  theoretical 
politics.  Its  cardinal  error  is  now  sufficiently  apparent. 
It  seeks  the  cure  for  all  social  evils  in  the  cultivation 
of  the  intellect,  and  disregards  the  fact  that  the  intel- 
lect is  a  power  which  can  be  used  for  evil  as  well  as  for 
good.  Thus,  though  the  chief  problem  in  law-making 
consists  in  overcoming  the  influence  of  selfish  inter- 
ests, there  is  no  guarantee  in  a  regime  based  on  intel- 
lect that  "the  thinking  part  of  the  nation"  will  not 
apply  its  thought  to  the  advantage  of  those  interests 
which  concern  its  own  class.  There  is  no  guarantee  that 
it  will  not  express  in  legislation  the  selfish  interests  of 
this  class  to  the  neglect  of  the  interests  of  that  third 
group  to  which  it  is  supposed  to  be  opposed  as  an 
"impartial"  power.  Mill  has  clearly  emphasized  this 
fallacy  of  liberalism.  He  says:  "Rulers  and  ruling 
classes  are  under  a  necessity  of  considering  the  in- 
terests and  wishes  of  those  who  have  the  suffrage ;  but 
of  those  who  are  excluded,  it  is  in  their  option  whether 
they  will  do  so  or  not ;  and  however  honestly  disposed, 
they  are  in  general  too  fully  occupied  with  things 
which  they  must  attend  to,  to  have  much  room  in  their 
thoughts  for  anything  which  they  can  with  impunity 
disregard."  l) 

1)  On  Representative  Government,  Ch.  VIII. 


INTERESTS   AND   THE    SENSE   OF   RIGHT  157 

The  liberal  political  movement  never  reached  the 
idea  that  the  primary  qualification  of  those  engaged  in 
law-making  is  not  intellect  but  character.  It  over- 
looked the  ethical  side  of  law-making  and,  like  the 
entire  legal  profession  of  that  period,  from  whom  the 
representatives  of  the  people  were  mostly  chosen,  it 
regarded  law-making  as  mainly  an  intellectual  opera- 
tion. And  if  one  looks  over  the  parliamentary  debates 
of  that  period,  he  will  find  on  nearly  every  page  the 
lawyers'  tricks  which  are  brought  into  the  discussions. 
He  will  find  almost  no  trace  of  the  idea  that  the  kernel 
of  all  legislation  does  not  lie  in  a  work  to  be  technically 
executed,  but  in  a  weighing  of  interests  by  the  appli- 
cation of  an  ethical  standard.  This  bias  is  entirely  com- 
prehensible, since  liberalism  generally  took  no  account 
of  ethics  and  religion  in  the  field  of  public  life.  And  the 
low  valuation  of  these  powerful  factors  in  the  life  of 
the  individual  fully  explains  the  strong  ecclesiastical 
reaction  which  we  are  still  experiencing.  But  the  error 
of  liberalism  appears  most  clearly  in  the  demand  for 
the  neutrality  of  the  state's  authority,  to  which  the  in- 
tellectualist  premises  of  this  movement  necessarily  led. 
From  the  "impartial  intellect"  it  deduced  the  "impar- 
tial state;"  and  it  believed  that  impartiality  was  best 
secured  when  neutrality  was  accepted  in  every  field, 
and  especially  in  the  field  of  law-making.  Consequently 
it  sought  not  to  give  every  one  his  due,  but  to  give  to 
every  one  the  same :  the  same  education  for  every  one, 
one  school  for  the  whole  people ;  the  same  law  for  every 
one,  an  identical  rule  for  poor  and  rich ;  the  same  free- 
dom for  every  one,  an  equal  independence  in  settling 


158  THE   MODERN   IDEA  OF  THE   STATE 

the  terms  of  legal  relationships.  But  while  this  abol- 
ished all  social  distinctions,  it  took  no  account  of  the 
diversity  of  needs  with  reference  to  religious  and  eccle- 
siastical life ;  it  closed  its  eyes  to  the  actual  inequality 
of  individuals ;  it  put  in  force  a  system  of  laissez  faire 
by  which  unregulated  social  forces  could  dominate 
legislation ;  and  everywhere  so  far  as  possible  it  accepted 
the  competitive  relationship.  The  neutrality  of  the  state 
amounted  in  fact  to  giving  a  covert  support  to  certain 
tendencies  and  social  interests,  and  the  word  neutrality 
was  in  fact  a  misnomer. 

There  was  indeed  no  lack  of  theories  which  opposed 
the  solution  of  liberal  politics.  But  a  theory  can  be 
partly  silenced,  and  is  in  fact  partly  silenced,  so  long 
as  it  has  to  find  its  support  only  in  the  logic  of  its  prin- 
ciples. It  is  only  when  a  theory  strikes  root  in  the  human 
soul  that  its  real  influence  begins  to  dawn.  And  then 
it  begins  to  work  with  a  force  which  can  come  only 
from  an  awakened  conscience.  So  it  happened  in  this 
case.  The  revolution  in  politics  which  we  are  experienc- 
ing at  the  present  time  has  sprung  not  from  intellect 
but  from  conscience.  When  the  thinking  part  of  the 
people,  with  its  watchwords  of  neutrality  and  free- 
dom, had  abandoned  the  non-thinking  part,  "limited 
to  the  satisfaction  of  the  needs  of  life,"  there  followed 
a  revolt  which  could  not  be  suppressed  with  bullets  and 
cavalry,  because  the  souls  of  men  had  been  aroused. 
In  the  whole  field  of  spiritual  life,  in  the  field  of  litera- 
ture, of  religion,  of  morals,  of  art,  as  well  as  in  that  of 
law,  we  have  seen,  since  the  eighties  of  the  last  cen- 
tury, an  outburst  of  feeling,  a  liberation  from  the  arro- 


INTERESTS  AND   THE   SENSE   OF   RIGHT  159 

gance  of  intellectualism.  A  new  birth  is  being  accom- 
plished which  has  its  origin  in  the  newly  awakened  life 
of  the  soul.  And  thus  politics  also  is  released  from  the 
insipidity  which  permeated  liberalism. 

Neutrality  as  the  essential  principle  of  state  action 
was  never  anything  more  than  the  flag  under  which 
the  theory  of  the  Manchester  School  invaded  practical 
politics.  But  it  is  very  closely  connected  with  the  view 
that  the  state  is  nothing  more  than  a  manifestation  of 
power,  or  at  any  rate  the  view  which  seeks  its  essence 
in  this,  and  which  therefore  conceives  the  state  as  hav- 
ing no  connection  whatever  with  any  sort  of  purpose. 
On  the  other  hand,  as  soon  as  the  state  is  regarded  as 
a  spiritual  authority  manifesting  itself  in  the  law,  it  is 
no  longer  possible  to  maintain  the  neutrality  of  the 
state  as  a  principle,  because  the  state  cannot  be  con- 
ceived as  lacking  a  mission.  The  state  cannot  be  neu- 
tral and  ought  not  to  be,  and  indeed  in  reality  never 
has  been.  In  a  given  case  it  may  be  a  matter  of  dispute 
whether  or  not  the  state  should  intervene  in  human 
relationships,  but  the  statesman  who  refuses  to  take 
a  hand  where  great  popular  interests  are  at  stake  be- 
cause of  the  presumed  neutrality  of  the  state  would 
unquestionably  be  derelict  in  his  duty  toward  the 
community,  whether  it  were  a  case  relating  to  the 
economic  or  the  spiritual  life  of  society.  For  in  the  law 
the  community  possesses  a  moral  power  which,  be- 
cause of  its  spiritual  nature,  includes  end  and  purpose. 

It  is  somewhat  different  to  defend  the  neutrality  of 
the  state  not  as  a  matter  of  principle  but  upon  tactical 
grounds.  Forbearance  on  the  part  of  the  state  can  be 


160      THE  MODERN  IDEA  OF  THE  STATE 

urged  very  forcibly,  even  where  the  existence  of  social 
ills  or  sins  has  been  clearly  established.  The  state  in 
fact  has  no  monopoly  of  remedial  powers  and  it  may 
frequently  happen  that  far  more  lasting  results  can  be 
achieved  by  waiting  for  the  operation  of  other  forces, 
without  the  intervention  of  legal  authority.  This  is 
particularly  true  in  the  case  of  religious  movements.  A 
people  which  has  been  entangled  in  a  barbarous  ortho- 
doxy or  has  gone  astray  in  its  moral  conduct 
needs  to  be  elevated.  But  in  this  case  history  teaches 
the  lesson  of  non-intervention  by  the  state,  because  the 
balance  can  be  restored  only  in  freedom  and  therefore 
where  there  is  no  interference  by  the  law.  But  even  here 
there  are  limits  to  the  tactics  of  neutrality.  And  when 
these  limits  have  been  reached,  the  vocation  of  the 
state  as  a  moral  power  involves  the  right  to  subject 
even  the  religious  life  to  its  rulership. 

V.  The  Balance  of  Interests.  Intellect  has  served  its 
time  as  the  determining  factor  in  politics.  The  influ- 
ence of  the  non-thinking  part  of  the  people  upon  the 
composition  of  the  representative  body  has  been  se- 
cured. And  yet  the  problem  of  legislation  is  more  acute 
than  ever,  for  the  conflict  of  social  interests  becomes 
sharper  and  sharper  in  the  representative  body  which 
is  engaged  in  law-making.  If  this  conflict  cannot  be 
avoided,  it  must  be  accepted  as  the  starting-point.  But 
from  this  starting-point,  how  is  a  legislator  without 
interests  to  be  obtained?  Mill  has  given  an  answer  to 
this  question.  In  the  first  place,  the  representative  sys- 
tem must  be  so  arranged  that  a  balance  is  established 


INTERESTS  AND  THE   SENSE   OF  RIGHT  161 

in  the  representative  body  between  the  social  interests. 
This  equilibrium  can  be  achieved  by  the  use  of  plural 
voting,  especially  by  a  counterbalancing  of  those  social 
classes  which  are  most  conspicuously  in  conflict,  the 
capitalists  and  the  workers.  In  a  state  whose  popula- 
tion is  not  divided  by  race,  language,  or  nationality, 
there  are  two  chief  classes :  the  working  class  together 
with  those  depending  upon  them,  i.e.,  the  group  of 
small  merchants  and  business  men,  and  the  employers 
in  the  widest  sense,  among  whom  also  the  capitalists 
belong.  If  these  classes  are  equally  represented,  there 
will  still  not  result  a  cessation  of  legislation,  since 
among  the  representatives  of  every  class  will  be  found, 
according  to  Mill's  prophecy,  a  small  minority  which 
is  capable  of  subordinating  the  interest  of  their  class 
to  reason,  justice,  and  the  general  welfare.  Such  per- 
sons, who  react  to  higher  motives  than  those  of  class 
interest,  hold  the  balance  of  power  in  party  votes.  They 
unite  with  the  opposing  party  in  order  to  prevent  class 
legislation,  in  which  case  the  system  has  a  negative 
effect.  The  positive  effect  is  seen  where  the  more  ele- 
vated and  independent  members  support  a  measure 
which  benefits  the  other  party;  in  this  case  the  class 
interests  of  that  party  are  recognized  as  legal  interests. 
Legislators  without  interests  are,  therefore,  actually 
to  be  found  in  society.  They  appear  automatically  as 
a  result  of  the  representative  system.  Who  they  may 
be,  one  does  not  know  in  advance ;  this  only  comes  to 
light  when  they  have  given  their  votes,  perhaps  in 
voting  against  measures  which  emanate  from  their  own 
party,  perhaps  in  supporting  the  measures  of  the  other 

The  modern  idea  of  the  State.  11 


162  THE   MODERN   IDEA  OF  THE   STATE 

party.  It  would  follow  from  this  that  the  elite  of  each 
party,  when  once  selected  in  this  manner,  would  be  all 
that  the  representative  system  needs,  and  the  others 
might  as  well  return  to  their  domestic  hearths.  But  the 
others  must  remain,  for  the  elite  changes,  -  -  and  here 
the  system  suffers  shipwreck.  The  elite  is  composed 
at  one  time  of  certain  representatives  and  at  another 
time  of  others.  But  if  all  in  turn  belong  to  those  who 
cast  the  deciding  vote,  then  the  mark  of  justice  is  upon 
them  all  and  there  is  no  real  elite.  Thus  Mill's  clever 
system  proves  delusive. 

VI.  The  Solution  of  the  Conflict.  And  the  same  is  true 
of  every  other  system  which  has  yet  been  conceived, 
for  a  legislator  without  interests  is  a  fiction  which  can 
only  be  realized  at  the  cost  of  the  second  requirement 
which  is  as  indispensable  for  law-making  as  impartial- 
ity, viz.,  an  insight  into  and  feeling  for  the  interests 
with  whose  evaluation  legislation  is  concerned.  To  be 
sure,  the  more  completely  the  legislator  is  withdrawn 
from  the  sphere  of  influence  of  these  interests,  the  more 
impartial  he  will  be ;  but  so  much  the  less  will  he  be  in 
a  position  to  judge  rightly  of  their  importance  because 
of  his  lack  of  knowledge.  And  on  the  contrary,  the 
nearer  he  stands  to  those  interests,  the  better  he  will 
understand  their  nature  and  significance,  but  the  less 
he  will  be  able  to  maintain  his  impartiality.  A  thor- 
ough-going impartiality  would  result  in  a  Stoical  in- 
difference to  social  interests ;  politics  based  solely  upon 
interests  and  lacking  a  sober  impartiality  would  issue 
in  revolutionary  passion.  Therefore,  we  can  neither 


INTERESTS   AND   THE   SENSE   OF   RIGHT  163 

separate  the  two  requirements  nor  attribute  to  one  a 
greater  weight  than  to  the  other.  They  must  be  united 
in  equal  measure  in  the  same  person.  The  same  being 
who  feels  the  living  pulsation  of  interests  must  hold 
the  scales.  But  if  this  is  so,  then  it  is  self-evident  that, 
so  far  as  the  two  requirements  are  opposed  to  one 
another,  the  conflict  must  be  overcome  not  outside, 
but  within  the  individual  himself.  The  representatives 
of  the  people  primarily,  but  also  the  voters,  must  pos- 
sess the  power  of  raising  themselves  to  a  level  of  objec- 
tivity where  the  value  of  interests  opposed  to  their 
own  is  clearly  apparent.  When,  with  the  extension  of 
democracy,  class  interests  find  themselves  opposed  to 
other  class  interests  in  parliament,  everything  must  be 
directed  toward  filling  the  minds  of  our  legislators,  of 
electors  and  elected,  not  with  the  idea  of  the  power 
which  they  are  able  to  set  in  motion,  but  with  the  idea 
of  the  principles  of  right  which  it  is  their  function  to 
realize.  By  means  of  law  we  desire  to  secure  the  ruler- 
ship  of  a  spiritual  power,  not  of  an  authority  support- 
ing itself  upon  compulsion^  The  watchword  for  democ- 
jacy.  therefore,  lies  in  strengthening  the  morl 
ity  of  the  mass  of  the  people. 

It  falls  outside  the  limits  of  this  treatise  to  mention 
all  the  ways  and  means  which  might  contribute  to  this 
end,  and  which,  as  in  the  case  of  children's  codes,  are 
already  being  applied  to  increase  the  sensibility  to  the 
influence  of  law  in  the  generation  now  living  and  grow- 
ing to  maturity.  On  the  other  hand,  it  is  necessary 
to  point  out  that  in  the  organization  of  legislation  at- 
tention has  been  altogether  too  much  directed  toward 


164  THE    MODERN   IDEA  OF  THE   STATE 

the  search  for  a  legislator  without  interests,  while 
much  less  importance  has  been  attached  to  the  need 
for  a  sufficient  knowledge  of  interests.  In  order  to 
satisfy  this  requirement  also,  a  reconstruction  of  our 
constitutional  law  is  needed  which  shall  bring  about  a 
-.  greater  decentralization  of  law-making  along  quite  dif- 

ferent lines  from  those  which  are  customary  at  the 
present  time.  Since,  however,  this  decentralization  ap- 
pears necessary  also  from  other  points  of  view,  this 
subject  must  be  discussed  in  a  special  chapter. 


CHAPTER  VI 

DECENTRALIZATION    OF   LAW-MAKING 

The  decentralization  of  law-making  may  be  advo- 
cated from  three  points  of  view.  Decentralization  may 
be  necessary  in  order  to  put  law-making  more  into  the 
hands  of  those  who  know  the  social  conditions  in  which 
the  law  is  to  function.  Again,  it  may  be  necessary  in 
order  to  curb  the  increasing  sense  of  power  of  existing 
organized  interests  (Interessengemeinschafteri)  by  trans- 
forming them  into  legal  communities  (Rechtsgemein- 
schafteri),  i.e.,  associations  whose  internal  relations  are 
governed  by  law  of  their  own  making.  Finally,  decen- 
tralization may  be  needed  because  the  people's  sense 
of  right  may  have  inadequate  organs  and  therefore  its 
operation  may  be  so  impaired  that  the  written  law  falls 
more  and  more  into  arrears. 

I.  Decentralization  based  upon  Community  of  Interest. 
In  so  far  as  law-making  has  been  decentralized  in  civil- 
ized countries,  this  has  taken  place  on  the  basis  of 
territory.  Groups  of  population  in  specific  territories 
have  law-making  organs  and  the  authority  of  these 
organs  extends  over  an  indefinite  number  of  interests. 
This  is  especially  the  case  in  the  Netherlands,  where 
there  are  law-making  organs  fo  the  groups  of  the  pop- 
ulation which  are  designated  as  the  kingdom,  the 


166  THE   MODERN   IDEA  OF  THE   STATE 

provinces,  and  the  communes.  The  entire  production 
of  law,  so  far  as  it  is  organized,  emanates  from  these 
organs,  to  disregard  for  the  present  the  dike  associa- 
tions. The  result  is  that  the  legislature,  the  provincial 
assemblies,  and  communal  councils  have  to  provide  for 
many  interests  which  are  so  remote  that  they  are  in- 
competent adequately  to  fix  their  legal  value.  They 
know  only  a  small  part  of  the  actual  course  of  the  social 
life,  and  yet  they  are  required  to  pass  judgment  upon 
what  lies  beyond  the  range  of  their  vision.  Consequently 
they  take  refuge  in  abstractions  and  fill  their  minds 
with  generalities  like  labor,  capital,  the  Church,  or  with 
catchwords  like  Christian  and  Pagan,  Jesus  and  Marx. 
As  Gneist  says  x)  "When  these  words  correspond  to  a 
vital  need  of  the  times,  they  are  called  'watchwords' ; 
when  they  have  served  their  purpose,  they  are  called 
mere  'phrases'.  The  criticism  of  opponents  is  accus- 
tomed to  anticipate  this  latter  stage."  So  far  as  parlia- 
ment is  concerned,  this  divorce  from  the  actual  course 
of  affairs  is  the  chief  reason  why  its  effectiveness  is  so 
often  dissipated  in  a  mere  knowledge  of  generalities 
which  is  all  glitter  and  no  substance.  Most  men  are_ 
not  developed  mentally  to  a  point  where  they  can  live 
by  principles  or  understand  their  significance.  Little 
differences,  therefore,  are  magnified  into  the  marks  of 
diametrically  opposed  philosophies.  This  disease  of 
imagining  depths  where  there  are  scarcely  shallows 
can  be  cured  only  by  contact  with  practical  affairs. 
Then  it  often  becomes  clear  how  slight  the  differences 
really  are  that  keep  men  apart.  In  our  direct  contact 

»)  Der  Rechtsstaat,  Ed.  2,  p.  241. 


DECENTRALIZATION   OF   LAW-MAKING  167 

with  social  life  we  get  a  schooling  of  inestimable  value, 
for  here  the  absolute  for  which  our  souls  hunger  is 
found  to  consist  solely  in  the  fact  that  all  social  inter- 
ests are  of  only  relative  value.  The  perception  of  this 
truth  gives  rise  to  a  genuine  impartiality,  which  cannot 
be  won  by  holding  aloof  from  interests  but  only  by  a 
clear  consciousness  of  their  real  value.  And  this  can 
be  gained  only  by  living  in  society.  An  insight  into  this 
need  is  gaining  ground  on  all  sides.  Legal  education  has 
begun  to  put  itself  in  line  with  this  demand  and  to  free 
itself  from  the  mere  literal  study  of  the  statutes.  The 
judge  is  reminded  again  and  again  that  his  council- 
chamber  is  not  enclosed  within  the  four  walls  of  the 
court-house  but  extends  beyond  it;  the  palace  of  jus- 
tice must  be  moved  to  the  market  place  of  life.  But  while 
a  training  in  sociology,  psychology,  and  psychiatry  is 
required  for  all  judicial  offices,  the  member  of  parlia- 
ment proclaims  himself  merely  the  "supporter  of  prin- 
ciples." A  teacher,  a  diplomat,  a  property-holder,  and 
a  professor  are  assigned  to  the  task  indifferently.  The 
failure  of  the  representative  system  as  it  now  exists  is 
due  to  the  fact  that  more  is  ordinarily  demanded  of  the 
sense  of  right  than  it  can  perform.  A  limitation  in  the 
range  of  interests  for  which  parliament  must  legislate 
is,  therefore,  a  matter  of  necessity. 

In  the  communal  councils  the  discrepancy  between 
the  work  of  law-making  required  of  them  and  their 
knowledge  of  social  conditions  is  equally  obvious.  It 
is  rare  that  any  one  holds  his  seat  in  one  of  these  coun- 
cils as  an  expert.  In  fact  an  expert  would  be  out  of  place 
there,  for  like  parliament  they  have  to  legislate  for  an 


168      THE  MODERN  IDEA  OF  THE  STATE 

indefinite  multitude  of  interests.  As  a  result,  the  mem- 
bers are  elected  because  of  their  political  alignment. 

The  decentralization  of  law-making,  therefore,  must 
follow  the  example  of  our  national  institution,  the  dike 
association  (water  corporation).  Its  first  aim  must  be 
to  call  into  being  circles  of  interests  and  to  make  these 
autonomous.  Organized  law-making  agencies  will  be 
freed  from  the  duty  of  legislating  for  interests  intrinsi- 
cally foreign  to  them.  These  interests  will  be  entrusted 
to  the  care  of  those  persons  who,  because  of  their  social 
connection  with  them,  are  best  fitted  to  determine 
their  legal  value. 

The  practical  application  of  this  idea  is  found  where 
the  need  is  recognized  of  combining  local  communities 
into  associations  for  special  purposes  (Zweckverbdnde) . 
By  this  means  new  self-governing  communities  are 
created  to  care  for  specific  public  interests.  The  same 
notion  is  found  also  in  the  proposals  for  special  asso- 
ciations on  game,  building,  roads,  fishing,  and  other 
similar  corporations  organized  on  the  model  of  the  dike 
associations.  The  same  idea  is  seen  in  the  effort  to 
bring  about  an  organization  of  trades  under  public 
law  by  forming  self-governing  corporations  to  protect 
and  further  the  interests  of  business,  industry,  and 
agriculture.  This  idea  has  been  realized  in  the  creation 
of  wage  boards  in  which  the  parties  essentially  inter- 
ested share  in  the  work  of  legislation,  i.e.,  in  the  fixing  of 
wages.  This  has  been  done  in  Australia,  and  recently 
England  has  followed  the  Australian  example.  But 
when  a  timid  effort  was  made  in  this  direction  here  in 
Holland,  in  the  form  of  a  plan  to  establish  bakery 


DECENTRALIZATION   OF  LAW-MAKING  169 

boards  and  workingmen's  councils  with  the  authority  to 
issue  ordinances,  the  proposal  was  met  with  the  protest 
that  it  entrusted  law-making  to  the  persons  interested. 
It  is  obvious  that  this  argument,  applied  in  so  wide  a 
sense,  strikes  at  the  whole  representative  system.  For 
it  is  impossible  ever  to  escape  from  government  by 
interested  parties.  All  law-making  and  ordinance- 
issuing  organs  are  certainly  composed  of  interested  per- 
sons. The  most  that  can  be  accomplished  is  to  prevent 
the  sense  of  right  from  being  confused  by  the  interests. 
We  get  a  much  more  certain  guarantee  against  such 
confusion  by  entrusting  legislation  to  those  who  live 
in  the  midst  of  social  conflicts  and  who  have  the  need 
for  compromise  clearly  before  them,  than  by  trying  to 
have  the  law  handed  down  from  the  heights  of  neu- 
trality. 

II.  Transforming  Organized  Interests  into  Legal  Com- 
munities. Since  the  right  to  organize  and  combine  has 
been  generally  recognized,  unions  of  interested  persons 
have  arisen,  especially  in  the  economic  world.  These 
are  organized  virtually  as  war-making  alliances.  The 
purpose  of  these  unions,  especially  of  the  so-called 
syndicats,  is  to  develop  a  social  power  by  which  they 
seek  to  improve,  so  far  as  possible,  the  legal  relations 
of  their  members.  The  resulting  controversies  often 
disturb  the  peace  of  society  and  sometimes  endanger 
important  public  interests.  This  was  not  foreseen  in 
granting  the  right  to  organize.  It  was  not  perceived 
that  a  theory  which  permitted  legal  relations  to  be 
established  by  conflict  practically  perpetuated  a  state 


1  70  THE   MODERN   IDEA  OF  THE   STATE 

of  war  and  thus  in  the  last  resort  permitted  the  law  to 
be  determined  by  force.  Now  the  view  is  gradually 
making  headway  that  social  life  ought  not  to  be  con- 
trolled by  the  force  which  can  be  effectively  exerted  by 
unions,  whether  they  be  labor  unions  or  syndicats  of 
officials  on  the  one  hand,  or  employers'  associations  or 
administrative  boards  on  the  other.  But  it  is  a  serious 
blunder  to  suppose  that  the  power  of  these  organiza- 
tions can  be  suppressed  by  the  mere  will  of  the  legis- 
lature. This  destructive  sense  of  power  can  be  uprooted 
only  by  an  internal  change,  by  inspiring  the  conscious- 
ness of  the  interested  parties  with  the  ideal  of  right. 
In  large  part,  however,  this  can  be  done  only  if  the 
interested  parties  are  themselves  called  upon  to  co- 
operate in  making  the  law  they  live  under,  instead  of 
receiving  their  law  from  above.  In  fact,  the  mere  recog- 
nition of  the  right  to  combine  stops  half-way  in  the 
process  of  organization,  because  it  stops  short  of  trans- 
forming these  combinations  into  legal  communities,  - 
that  is,  associations  in  which  the  contending  social 
forces  are  brought  together  to  make  laws  to  regulate 
the  interests  which  divide  them.  The  lack  of  such  asso- 
ciations gives  a  great  impetus  to  the  sense  of  power  and 
does  a  corresponding  injury  to  the  sense  of  right.  The 
legal  relations  which  arise  in  the  course  of  the  struggle 
are  merely  truces  which  at  any  moment  may  give  way 
to  a  state  of  war.  Finally  there  comes  a  time,  as  in  the 
strike  of  the  English  miners,  when  the  warfare  extends 
so  far  that  it  endangers  great  interests,  perhaps  even 
national  interests,  and  then  it  becomes  obvious  that 
an  association  with  its  own  legislative  organs  is  a  neces- 


DECENTRALIZATION   OF  LAW-MAKING  171 

sity.  And  by  the  introduction  of  wage  boards  the  idea 
was  partly  realized  some  years  ago  in  England. 

In  this  way,  then,  a  decentralization  of  law-making 
may  be  urged  as  a  means  of  curbing  the  gradually  in- 
creasing idea  that  law  can  spring  from  force,  and  as  a 
way  of  upholding  the  ethical  character  of  the  law. 


III.  The  Lack  of  Legislative  Organs.  According  to  the 
modern  idea  of  the  state  both  political  science  and 
practical  politics  ought  to  devote  the  greatest  care  and 
attention  to  the  organization  of  law-making.  The  de- 
tail with  which  text-books  on  constitutional  law  treat 
of  the  crown,  as  if  the  heart  of  the  state  lay  in  this  in- 
stitution, is  in  glaring  contrast  with  the  slight  attention 
they  devote  to  legislation.  And  yet,  more  and  more, 
both  within  the  boundaries  of  particular  states  and 
outside  them,  the  legislature  is  obviously  the  real  ruler. 
For  the  most  part,  however,  this  ruler's  court  has  still 
to  be  created. 

In  the  Netherlands  we  have  three  divisions  of  gov- 
ernment which  function  in  the  service  of  the  law,  a 
national,  a  provincial,  and  a  communal  government. 
But  this  number  is  proving  more  and  more  unequal 
to  the  work  required.  This  is  true  especially  of  Parlia- 
ment, which  each  year  falls  more  and  more  into  arrears. 
Since  society  has  a  pressing  need  for  a  continual  re- 
newal of  the  law,  it  is  forced  to  depend  upon  the  action  of 
the  unorganized  sense  of  right.  This  tides  it  over  emer- 
gencies to  some  extent,  but  it  is  always  a  fragmentary 
way  of  making  law.  Unwritten  law  is  at  best  an  insuf- 
ficient supplement  to  statutory  law.  As  a  result  a 


172  THE   MODERN    IDEA   OF  THE   STATE 

considerable  part  of  social  life  is  excluded  from  the 
control  of  law.  Associations  are  made  and  dissolved 
daily  without  the  co-operation  of  law.  Thus  relations 
not  only  become  uncertain,  but  many  relations  are 
established  which  would  certainly  not  be  regarded  as 
lawful  if  adequate  legislation  had  existed  but  which 
now  persist  under  the  influence  of  uncontrolled  forces. 

These  arrears  of  legislation  can  be  made  up  in  the 
long  run  only  if  the  belief  arises  that  our  political  organ- 
ization needs  to  be  developed  by  the  addition  of  new 
legislative  organs.  The  points  of  attachment  for  these 
new  organs  are  the  organized  interests  referred  to  in 
the  two  preceding  sections.  The  domain  of  law  is  ex- 
tended daily.  Many  interests  are  continually  falling 
under  the  care  of  the  community,  or  need  such  care, 
and  the  old  type  of  legislative  organ  is  powerless  to 
meet  this  need.  The  barrenness  of  the  legislature  is  not 
the  fault  of  any  particular  system  of  government,  least 
of  all  of  so-called  parliamentary  government.  Our  par- 
liaments do  the  best  they  can.  Service  in  the  represent- 
ative assembly  demands  the  whole  time  and  attention 
of  the  member  and  in  most  cases  this  is  actually  given. 
The  ministers  labor  at  a  problem  which  calls  for  a 
head  of  iron  and  the  health  of  a  professional  athlete. 
And  yet  in  spite  of  all  this  labor,  law-making  is  in 
arrears. 

But  "it  does  move!"  Society  does  not  stand  still.  To 
be  sure,  it  has  got  along  for  centuries  and  can  get  along 
some  years  longer  in  the  same  way.  In  the  social  life 
action  does  not  wait  upon  law.  Instincts,  interests,  and 
feelings  of  a  higher  or  lower  order  keep  the  wheels  mov- 


DECENTRALIZATION   OF  LAW-MAKING  173 

ing.  But  for  us  the  motion  is  less  important  than  the 
direction  in  which  motion  takes  place.  And  law  deter- 
mines the  direction.  When  the  law  is  in  arrears  the  so- 
cial whole  and  its  parts  are  disorganized.  Nevertheless, 
under  the  influence  of  natural  forces  and  natural  laws, 
results  do  come  about  but  only  as  chance  may  direct, 
for  there  is  no  leadership.  The  question,  then,  is  whether 
we  dare  remain  at  the  mercy  of  such  a  condition; 
whether  the  social  life  must  not  be  better  directed  to 
the  attainment  of  valuable  ends ;  whether  a  far  greater 
proportion  of  the  citizens  must  not  be  employed  in 
effecting  the  development  and  rejuvenation  of  law.  But 
if  this  is  to  come  about,  the  agencies  for  this  employ- 
ment must  not  be  lacking.  In  our  times  there  is  a  great 
and  a  growing  lack  of  such  agencies,  and  in  consequence 
the  spiritual  force  of  the  law  cannot  achieve  its  full 
effect.  Formerly  it  was  possible  to  be  content  with  a 
national,  a  provincial,  and  a  communal  parliament  to 
afford  legal  protection  to  those  interests  which  set  in 
motion  the  sense  of  right  of  the  generation  then  living. 
These  interests  were  essentially  limited  to  the  main- 
tenance of  such  public  interests  as  peace,  order,  secur- 
ity, etc.  After  the  seventies  and  eighties  of  the  last 
century,  however,  the  sense  of  right  reacted  to  a  far 
larger  number  of  conflicting  interests,  including  some 
which  touched  directly  the  personal  life  of  the  citizens. 
This  has  led, to  nothing,  however,  except  the  inclusion 
of  a  steadily  increasing  number  of  citizens  in  the  work 
of  law-making,  but  always  by  means  of  the  already 
existing  organs  for  this  purpose.  The  inadequacy  of 
this  organization  to  produce  the  legislation  needed  by 


174  THE  MODERN  IDEA  OF  THE  STATE 

society,  as  witnessed  by  the  growing  dissatisfaction 
with  the  existing  legal  system,  now  makes  a  forcible 
demand  for  the  extension  of  the  organization.  This  can 
be  accomplished  only  by  setting  aside  the  old  centralized 
method  of  law-making  and  by  introducing  new  legis- 
lative organs.  When  these  new  organs  are  established 
to  settle  specific  conflicts  of  interests  by  representa- 
tion of  the  parties  interested,  the  right  to  share  in  law- 
making  will  become  a  valuable  privilege.  At  the  pre- 
sent time  the  electors'  right  to  express  an  opinion  upon 
the  legal  value  of  interests  has  scarcely  more  than  nom- 
inal worth.  By  such  a  change  as  that  proposed  the 
living  sense  of  right  in  society  will  be  brought  into  full 
operation. 


CHAPTER  VII 

THE   SOURCES   OF  LAW 

In  explaining  the  sources  of  law  a  distinction  must 
be  made  between  the  sources  of  its  validity  and  the 
sources  of  its  content.  Usually  the  phrase  "sources  of 
law"  refers  to  its  content,  and  in  this  sense  statute, 
ordinance,  custom,  treaty,  the  science  and  practice 
of  jurisprudence,  etc.,  are  named  as  the  sources  of  law. 
In  this  field  lies  the  service  of  the  Historical  School.  It 
concerned  itself  chiefly  with  the  question  how  the  con- 
tent of  law  is  to  be  discovered,  and  in  opposition  to  the 
School  of  Natural  Law  it  showed  that  there  is  more  than 
one  source  from  which  law  can  derive  its  content.  If  we 
were  to  take  up  the  origin  of  law  from  this  point  of 
view,  we  might  have  to  amplify  the  list  of  sources  now 
that  unwritten  law  (or  more  generally  non-sovereign 
law)  has  been  rediscovered  in  every  field;  we  should 
also  have  to  investigate  the  relative  importance  of 
each.  Indeed  the  science  of  law  has. turned  its  attention 
to  this  problem.  At  the  present  time,  however,  this 
science  is  confronted  primarily  by  another  and  far  more 
difficult  problem,  since  it  has  undertaken  to  investi- 
gate the  validity  of  the  law.  Hence  it  raises  the  ques- 
tion: What  is  the  common  foundation  of  the  binding 
force  of  all  law,  whatever  its  content  may  be?  When 
the  new  legal  science  answers  this  question  by  referring 


176  THE   MODERN   IDEA  OF  THE   STATE 

to  the  spiritual  force  of  the  sense  of  right  which  is  ac- 
tive in  men,  and  derives  from  it  the  binding  force  of  all 
law,  however  made,  it  is  well  aware  that  it  has  done 
little  more  than  point  out  anew  field  for  investigation. 
Consequently  this  legal  science  must  undertake  espe- 
cially the  analysis  of  the  sense  of  right,  a  task  which 
has  already  been  attempted  in  this  country  by  Kranen- 
burg.  One  thing  at  least  has  been  accomplished  in  this 
direction,  —  the  discovery  that  the  validity  of  law 
arises  from  a  single  source  and  that  this  source  must  no 
longer  be  sought  in  abstractions  like  the  state,  the 
sovereign,  the  people,  the  legislature,  parliament,  or 
any  other  fictitious  authority.  It  must  rather  be  sought 
in  a  force  of  the  highest  reality,  which  never  ceases  to 
operate,  never  interrupts  its  work,  or  loses  its  obliga- 
tory character.  This  does  away  with  the  derivation  of 
law  and  its  binding  force  from  a  will,  either  a  natural 
will  or  a  fictitious  one  (as  in  the  case  of  corporations, 
etc.).  For  the  authority  which  gives  rise  to  the  legal 
character  and  binding  force  of  rules  lies  outside  the 
will  and  claims  to  dominate  it.  The  sense  or  feeling  for 
right  has  /normative^  character,  though  the  will  has  not. 
Because  this  fact  is  misunderstood  by  many  scholars 
and  the  search  xor  a  normative  will  is  continued,  espe- 
cially in  the  case  of  statutory  law,  the  meaning  of  the 
new  theory  of  law  remains  hidden  from  them.  This  is 
the  case  with  Manigk  x),  the  defender  of  the  fame  of 
Savigny.  He  still  believes  that  the  basis  for  the  bind- 
ing force  of  law  must  be  sought  in  a  fiction  instead  of 
in  a  reality  which  manifests  itself  in  a  more  and  more 

*)  Savigny  und  der  Modernismus  im  Recht,  1914. 


THE   SOURCES  OF  LAW  177 

productive  form.  A  knowledge  of  this  reality  forms  at 
present  the  most  important  problem  of  the  science  of 
law.  To  this  particular  problem  Savigny  and  his  School 
contributed  nothing.  It  is  true  that  in  the  writings  of 
Savigny  and  Puchta  there  occur  expressions  like  "the 
spirit  of  the  nation"  and  "national  convictions,"  which 
have  a  bearing  upon  the  validity  of  law.  These  are  in- 
tended, however,  merely  to  emphasize  the  instinctive 
or  non-reflective  growth  of  the  law,  as  against  the  in- 
tellectualism  of  the  School  of  Natural  Law.  In  the  field 
of  law,  Savigny  occupied  the  same  position  in  his  time 
as  the  counter-revolutionists  (Burke,  von  Gentz)  in  the 
field  of  political  theory.  The  latter  were  the  opponents 
of  rationalism  in  politics  and  urged  the  traditional  and 
historical  as  the  proper  guides  for  organizing  the  state. 
In  his  own  field  Savigny  represented  the  reaction  which 
appeared  everywhere  at  the  beginning  of  the  nine- 
teenth century  against  the  rationalism  of  the  period  of 
Enlightenment  and  against  the  applications  of  this 
rationalism,  especially  in  the  French  Revolution.  This 
is  the  light  in  which  the  Historical  School  of  Law  must 
be  understood.  It  is  in  no  sense  to  be  regarded  as  the 
precursor  of  what  is  now  called  the  Free  School  of  Law. 
It  is  possible,  as  Manigk  has  tried  to  show,  that  ex- 
pressions occur  in  Savigny 's  works  and  that  sentences 
can  be  selected  from  them  which  agree  with  the  Free 
School,  but  details  of  this  sort  put  Savigny  out  of  the 
setting  of  his  own  period  and  give  no  material  support 
to  the  modern  school. 

The  problem  with  which  legal  science  is  now  con- 
fronted is  no  longer  the  refutation  of  the  theory  of  nat- 

Tho  modern  idea  of  the    State.  12 


178  THE   MODERN   IDEA   OF  THE    STATE 

ural  law.  To  this  the  Historical  School  made  its  own 
contribution,  which  led  to  the  conclusion  that  "Posi- 
tive law  as  it  has  developed  historically  carries  the  proof 
of  its  own  justification."  l)  The  problem  at  present  is 
to  overthrow  another  figment  of  the  imagination,  viz., 
the  view  which  is  content  to  base  the  validity  of  law 
upon  abstractions  and  fictions  by  tracing  this  validity 
to  a  sovereign,  a  legislator,  or  whatever  the  subject  of 
the  state's  will  may  be  called.  ItnausLheJagsted  that 
the  legal  character  and  hence  the  binding  force  of  rules 
is  derived  from  a  single  authority ,  viz.,  that  impersonal 
authority  which  asserts  itself  whenever  our  sense  of 
right  is  aroused  with  reference  to  human  actions.  Once 
this  point  is  emphasized  we  have  entered  upon  the 
road  which  must  lead  to  the  giving  up  of  the  notion  of 
a  limited  number  of  sources  of  law,  together  with  the 
doctrine  that  statutory  law  alone  is  supreme.  The  re- 
sult of  this  is  free  law-making. 

There  is  only  one  sense  in  which  it  can  perhaps  be 
said  that  Savigny  and  his  disciples  were  forerunners  of 
the  Free  School.  The  rejection  of  the  notion  that  reason 
is  the  only  source  of  the  content  of  law  necessitated  a 
multitude  of  sources  of  law.  But  one  will  look  in  vain 
in  Savigny  for  the  proposition  that  this  multiplicity,  - 
or  indefiniteness,  as  we  should  now  say,  —  results  nec- 
essarily from  the  basis  of  legal  authority,  for  Savigny 
does  not  recognize  the  validity  of  positive  law  as  a  prob- 
lem. The  validity  of  law  only  very  recently  became  a 
problem.  Its  solution  will  necessarily  bring  with  it  a 

*)   Karl  Wieland,  Die  historische  und  die  kritische  Methode  in  der 
Rechtswissenschajt,  1910. 


THE   SOURCES   OF  LAW  179 

revision  of  the  list  of  sources  from  which  law  derives 
its  content.  We  are  concerned  here,  however,  chiefly 
with  the  investigation  of  the  validity  of  law.  In  this 
connection  there  is  only  one  decisive  factor,  as  we  have 
tried  to  show,  -  -  the  feeling  or  sense  of  right. 


CHAPTER  VIII 

THE   DEVELOPMENT  OF  LAW 

The  acceptance  of  the  view  that  the  basis  of  author- 
ity lies  in  the  sense  of  right  has  an  importance  for 
^development  of  law  that  can  be  understood  only  by 
contrasting  this  view  with  two  others  which  for  a  long 
time  checked  and  obstructed  the  growth  of  law  and 
which  to  some  extent  continue  to  do  so  even  yet.  One 
of  these  views  is  marked  by  the  high  value  which  is  set 
/  I  upon  the  historical  process ;  the  other  emphasizes  the 
share  which  intellect  has  in  the  development  of  law.  The 
former  regards  the  development  of  law  as  mainly  an 
instinctive  process  which  goes  on  outside  consciousness ; 
the  latter  regards  the  making  of  law  as  primarily  an 
intellectual  operation. 

The  theory  of  the  sense  of  right  is  opposed  to  both 
these  views,  since  it  seeks  to  understand  the  develop- 
ment of  law  as  arising  primarily  from  men's  emotional 
life.  A  product  of  history  or  of  the  understanding  which 
cannot  stand  the  test  of  the  existing  sense  of  right  has 
lost  its  validity.  Consequently  it  is  an  ethical  factor 
which  controls  the  development  of  law."" 

In  order  to  explain  this  we  must  examine  more 
closely  the  meaning  of  "historical  process"  and  the 
rdle  which  mere  intelligence  has  played  in  the  develop- 
ment of  law. 


THE   DEVELOPMENT  OF  LAW  181 

I.  The  Historical  Process.  The  phrase  "historical  proc- 
ess" carries  with  it  the  notion  that  what  has  come 
about  in  this  way  has  a  value  of  its  own  and  thus  has  a 
right  to  exist  in  the  future.  When  a  specific  occurrence 
is  called  "historical,"  this  is  a  judgment  of  value, 
though  the  occurrence  is  a  mere  matter  of  fact.  The  val- 
ue of  the  "historical"  is  expressly  asserted  by  those 
who  believe  that  they  can  see  in  facts  a  revelation  of 
the  will  of  God.  The  historical  process  obtains  in  this 
way  the  appearance  of  divinity.  Hence  we  find  the 
most  frequent  references  to  the  historical  process  in 
those  schools  which  start  from  revelation  and  which  be- 
lieve that  they  can  find  revelation  not  only  in  the  word 
of  God  but  also  in  history.  As  Groen  van  Prinsterer,  a 
Christian  statesman,  puts  it,  we  have  to  reckon  not  only 
with  "thus  it  is  written,"  but  also  with  "thus  it  has 
come  to  pass." 

In  this  way,  for  example,  De  Savornin  Lohman  in 
this  country  has  justified  our  monarchy.1)  The  sover- 
eignty of  the  House  of  Orange  is  the  outcome  of  facts, 
and  because  of  these  facts  it  has  manifestly  been  called 
to  the  throne  by  God. 

How  far  the  tendency  may  go  to  regard  facts  as  di- 
vine revelations  is  best  seen  in  "Our  Program"  by  Dr. 
Kuyper.  Here  we  learn  that  "the  Almighty  bestows 
sovereign  political  authority  sometimes  by  prescrip- 
tion after  conquest  by  force,  sometimes  by  agreement 
and  contract.  Sometimes  also  it  is  bestowed  through  a 
regular  mandate  either  by  the  unanimous  assent  of  the 


Onze  Constitute,  Ed.  2,  1907. 


182      THE  MODERN  IDEA  OF  THE  STATE 

people  or  in  solemn  convocation  of  their  leaders.  And 
finally,  so  far  as  the  individual  occupant  of  the  throne 
is  concerned,  it  is  most  frequently  bestowed  through 
inheritance.  None  of  these  ways  lies  outside  the  divine 
ordinance."  It  is  obvious  that  from  this  point  of  view 
earthquakes  and  floods  might  just  as  well  have  been 
included  in  the  list. 

It  often  happens,  however,  that  without  expressly 
regarding  the  historical  process  as  a  revelation  from 
God,  the  status  quo  is  defended  by  conceiving  it  as  his- 
torically evolved,  in  accordance  with  the  principle  of 
the  Hegelian  philosophy  of  law  that,  "The  real  is  the 
rational."  More  than  one  application  of  this  principle 
might  be  pointed  out  in  quite  recent  times.  Thus  the 
requirement  of  more  than  a  bare  majority  to  amend 
the  constitution  has  been  justified  by  the  argument 
that  "in  this  case  history  is  on  the  side  of  the  minor- 
ity." The  former  minister  Loeff  thus  expressed  him- 
self, believing  that  he  could  by  this  means  obtain  a 
special  sanction  for  a  human  device.  We  find  the  same 
line  of  thought  also  in  Professor  Struycken  when  he 
says  that  what  has  evolved  historically  has  a  high 
legal  value  for  us. 

I  borrow  a  final  example  from  the  report  of  the  Com- 
mission of  1910  on  the  Reform  of  the  Constitution.  Here 
the  facts  are  frequently  regarded  as  setting  a  standard. 
In  regard  to  private  education  (that  is,  education  not 
entrusted  to  a  public  corporation)  the  remark  is  made, 
"Private  education  ought  to  be  recognized  as  having 
the  place  due  it  on  the  basis  of  the  facts."  To  justify 
continuing  the  financial  relations  between  church  and 


THE   DEVELOPMENT  OF  LAW 


183 


state,  we  are  referred  to  the  obligation  formerly  as- 
sumed by  the  state,  an  obligation  which  in  turn  origi- 
nated in  prior  facts  and  events. 

The  thought  which  lies  behind  the  appeal  to  the  his- 
torical process  originated  in  the  attack  upon  rational- 
ism, especially  as  the  latter  manifested  itself  in  the 
French  Revolution.  This  attack  is  to  be  found  in  the 
writings  of  Burke,  von  Gentz,  and  de  Maistre,  all  of 
whom  sound  the  same  note.  They  set  up  in  opposition 
to  rationalism  a  development  proceeding  without  re- 
flection, an  instinctive  growth  as  opposed  to  the  pro- 
duct of  consciousness.  Their  emphasis  falls  upon  tra- 
dition and  on  this  basis  they  espouse  the  principle  of 
legitimacy.  As  we  remarked  in  the  preceding  chapter, 
the  same  idea  is  to  be  found  in  Savigny  and  his  School, 
for  they  reduce  conscious  law-making  by  legislative 
enactment  to  second  place  and  give  precedence  to  cus- 
tomary law  which  grows  up  without  reflection.  Stahl 
has  given  the  clearest  statement  of  the  significance 
thus  attributed  to  the  historical  process.  x)  The  legiti- 
mist party,  he  says,  takes  its  stand  on  the  foundation 
of  historic  right.  But  what  is  meant  by  historic  right? 
It  is  not  a  law  of  nature  or  reason,  such  as  the  Revolu- 
tion appealed  to,  which  is  nothing  more  than  a 
bundle  of  human  opinions  as  to  what  is  right.  Neither 
is  it  positive  law  or  statute,  that  is,  what  the  authority 
of  the  state  has  promulgated,  though  this  has  formal 
validity.  The  latter  ought  to  be  changed  in  many  re- 
spects, since  it  has  originated  from  the  arbitrary  act  of 


Die  gegenwdrtigen  Parteien  in  Stoat  und  Kirche,  Lect.  23. 


184      THE  MODERN  IDEA  OF  THE  STATE 

the  sovereign  people  without  reference  to  the  positive 
law  which  has  been  handed  down  to  us  from  the  past. 
Rather,  the  legitimist  party  understands  by  law  the 
traditional  legal  order,  the  law  which  has  originated 
naturally  and  evolved  historically  (the  law  which  has 
been  handed  down,  the  law  which  has  come  about  natur- 
ally and  historically] .  This  law,  which  originates  in  cus- 
tom and  various  kinds  of  statutes,  is  not  rooted  in  hu- 
man reflection  and  in  general  has  not  been  introduced 
by  men,  but  is  a  product  of  nature  and  history.  It  is 
this  law  which  is  opposed  to  the  Revolution ;  it  is  not 
based  upon  arbitrary  human  choice  but  rather  upon 
the  human  tendency  to  respect  the  existent,  the  evolved, 
the  traditional.  Consequently  it  is  put  forward  as  some- 
thing which  is  given  to  man  and  not  made  by  him.  Stahl 
does  not  hesitate  to  draw  the  conclusion  that  claims 
and  privileges  which  have  been  once  granted  to  individ- 
uals and  classes  by  earlier  law  must  be  recognized  as 
incontestable  vested  rights. 

In  so  far  as  this  view  issues  in  the  notion  that  the 
decrees  of  God  are  revealed  in  history,  as  was  the  case 
with  Stahl  and  his  followers,  it  demands  a  degree  of 
faith  which  it  can  no  longer  command,  in  the  face  of 
the  scientific  point  of  view.  But  in  so  far  as  this  is  not 
the  case,  and  the  point  of  view  of  revelation  is  not 
adopted,  the  historical  process  is  nothing  more  than  the 
formula  of  a  reaction  against  rationalism.  In  order  to 
escape  from  the  results  of  rationalism  and  of  the  prin- 
ciple which  lies  at  its  basis,  an  appeal  is  made  to  the 
forces  of  the  unconscious  life,  from  which  the  present  or 
the  former  political  and  legal  systems  in  large  measure 


THE    DEVELOPMENT   OF   LAW  185 

originated.  To  have  pointed  out  these  forces  is  undoubt- 
edly the  great  service  of  the  Historical  School  in  the 
field  of  politics  and  law.  Thus  it  contributed  to  estab- 
lish the  view  that  no  legislative  fiat  can  dissolve  the 
tenacious  bonds  of  the  social  life.  Certainly  it  has  opened 
our  eyes  to  the  truth  that,  without  a  fundamental 
knowledge  of  these  bonds  and  without  an  insight  into 
actual  relations,  the  commands  of  any  authority  how- 
ever lofty  are  mere  impotent  and  ineffectual  pre- 
cepts, if  they  do  not  take  account  of  social  forces  out- 
side the  law.  But  it  is  one  thing  to  take  account  of  these 
forces  and  another  to  regard  their  operation  as  proc- 
esses having  a  peculiar  spiritual  value.  If  we  attribute 
unique  and  independent  value  to  the  historical  process 
and  rule  out  the  purposeful  intervention  of  men,  we 
are  compelled  to  give  free  play  to  various  social  forces 
and  to  regard  their  operations  as  inevitable.  It  is  this 
disposition  to  put  aside  human  responsibility  which 
must  be  guarded  against. 

The  essence  of  the  theory  in  question  lies  in  its  fail- 
ure to  appreciate  the  value  of  the  spiritual  freedom  of 
men.  It  immures  the  spirit  in  a  past  which  for  the  most 
part  was  not  the  product  of  spiritual  forces  but  was  im- 
posed upon  us  from  without.  On  the  other  hand,  the 
rise  and  success  of  rationalism  came  precisely  from  a 
significant  effort  to  win  back  this  spiritual  freedom. 
Against  a  repressive  history  it  set  up  a  source  of  values 
which  sought  to  create  an  order  out  of  spiritual  free- 
dom, in  spite  of  the  historical  development  of  the  state 
and  of  law.  In  a  highly  one-sided  way,  though  as  we 
shall  see  hereafter  in  a  way  which  is  perfectly  intelligi- 


186  THE   MODERN   IDEA  OF  THE   STATE 

ble  in  the  light  of  the  circumstances  under  which  it 
flourished,  rationalism  supposed  it  to  be  possible  to 
find  the  chief  source  of  these  values  in  the  intellect.  It 
over-estimated  what  this  part  of  the  mind  can  contrib- 
ute to  the  development  of  law.  But  this  in  no  wise  di- 
minishes the  universal  significance  ofjrationaljsfli  aafl 
of  the  School  of  Natural  Law  to  which  it  gave  rise.  For 
the  latter  opened  a  period  in  which  the  human  mind 
broke  through  the  bonds  of  a  system  of  thought  which 
oppressed  and  utterly  misconceived  the  freedom  of  the 
spirit. 

This  has  happened  more  than  once,  for  history  shows 
us  a  succession  of  periods  in  various  fields  when  such  a 
regeneration  has  occurred.  Some  of  these  periods  may 
be  mentioned  to  make  clear  our  criticism. 

The  first  and  perhaps  the  most  important  of  them 
all  we  find  in  Greece  at  the  time  of  Socrates,  when  the 
world  presented  itself  to  the  human  mind  as  a  mirror- 
ing of  its  own  spiritual  life.  Thus  Socrates  found  in  the 
formula,  "Know  thyself,"  the  key  to  an  understanding 
of  the  universe.  The  history  of  the  cosmic  process  is 
measured  by  what  we  experience  and  suffer  from  it. 

The  rise  of  Christianity  brings  us  to  another  period 
centuries  later.  Once  more  humanity  divests  itself  of  a 
portion  of  its  history  by  bringing  the  life  of  the  individ- 
ual into  immediate  relation  with  the  Absolute.  The 
spiritual  life  expands,  for  by  casting  off  past  and  pres- 
ent it  is  transported  into  eternity.  Humanity  sets  it- 
self to  preparing  for  this  eternal  life,  for  the  other 
world.  To  this  end  it  establishes  a  new  community,  the 
Church. 


THE   DEVELOPMENT  OF   LAW  187 

The  third  period  to  which  we  refer  arose  from  the 
clash  of  ancient  Greek  thought  with  the  supersensuous 
truths  of  the  Church.  The  Renaissance  satisfies  the 
needs  of  the  understanding;  the  Reformation  satisfies 
those  of  the  spirit.  In  both  it  came  to  pass  again  that 
men  shook  off  the  incubus  of  a  history  imposed  upon 
them  from  without.  The  Renaissance  frees  men  from 
a  system  of  thought  which  had  deduced  all  events  from 
the  ordinances  of  God,  and  brings  the  individual  to  a 
consciousness  of  the  value  of  his  own  spiritual  life.  The 
Reformation  carries  out  the  same  idea  in  the  sphere  of 
religion  and  no  longer  tolerates  the  Church  as  an  inter- 
mediary between  man  and  God.  -^L_ 

A  fourth  period  finally  is  that  of  the  French  Revolu- 
tion. It  attacks  social  and  political  relations,  as  these 
had  developed  in  the  course  of  history,  and  places  be- 
fore the  nations  the  task  of  ordering  these  relations  ac- 
cording to  ends  which  they  set  for  themselves. 

In  each  of  these  periods  a  spiritual  liberation  is  ac- 
complished, the  motive  force  for  which  wells  up  from 
men's  inner  life.  It  is  a  liberation  from  something  im- 
posed from  without  by  alien  forces,  from  an  inherited 
but  spiritually  outworn  past.  To  accomplish  this  liber- 
ation and  so  to  bring  about  the  recognition  of  new  val- 
ues, space  must  be  cleared  in  our  consciousness.  The 
heavy  burden  of  thoughts,  feelings,  and  instincts  with 
which  our  train  of  life  is  loaded  is  a  powerful  check 
against  progress  to  a  higher  stage  of  civilization.  But 
just  as  the  life  of  the  individual  has  moments  of  spirit- 
ual liberation,  so  humanity  also,  in  its  struggle  toward 
a  higher  life,  has  its  periods  of  reform  in  which  it  strives 


188  THE   MODERN   IDEA  OF  THE   STATE 

to  free  the  spirit  from  the  yoke  of  history  and  to 
cast  off  the  burden  of  the  merely  historical.  It  may  be 
that  once  more  we  are  standing  upon  the  threshold  of 
such  a  period.  In  any  case  it  is  certain  that  the  appeal 
to  the  merely  historical  betrays  a  misconception  of  our 
spiritual  faculties  and  aims  at  preserving  the  existence 
of  a  mode  of  life  even  though  it  has  lost  its  spiritual 
significance.  The  pply 


ng  generation. 

rical  can  claim 


made  is  the  consciousness  of  the  living  generation. 
Thus  in  the  field  of  law  also  the  historical 
present  validity  only  in  case  its  rules  commend  them- 
selves as  rules  of  law  to  the  sense  of  right  at  present 
dominant. 


II.  Intellectualism.  We  must  now  turn  our  attention 
to  the  second  of  the  two  views  mentioned  above  and 
consider  the  importance  which  the  intellect  has  had  in 
the  development  of  law. 

As  we  said  before,  rationalism  is  a  theory  directed 
toward  the  theoretical  and  practical  liberation  of  the 
mind.  When,  however,  it  based  the  development  of 
law  primarily  upon  the  intellect,  it  far  overshot  its 
mark. 

In  order  to  show  this,  we  shall  begin  with  the  objec- 
tion which  is  usually  made  against  the  French  Revo- 
lution, namely  that  it  was  not  only  unhistorical,  —  this 
can  be  said  of  all  revolutions  that  give  a  new  direction 
to  the  human  mind,  -  -  but  was  indeed  intoxicated 
with  the  spirit  of  rationalism.  This  is  not  to  be  denied. 
In  reconstructing  the  government  and  in  settling  the 
laws  which  were  to  be  enacted  by  the  state,  rationalism 


THE   DEVELOPMENT  OF  LAW  189 

was  almost  the  only  method  used.  England  was  practi- 
cally the  only  source  of  empirical  data  upon  the  organ- 
ization and  operation  of  popular  government,  but 
owing  to  the  swift  march  of  events,  the  leaders  of  the 
Revolution  scarcely  had  time  and  opportunity  to  profit 
by  what  Montesquieu  had  imparted  to  his  countrymen 
regarding  the  English  Constitution.  Of  Montesquieu's 
teaching,  only  the  separation  of  powers,  which  he  had 
especially  emphasized  in  English  constitutional  law, 
was  available.  Everything  else  had  to  be  constructed 
on  the  basis  of  general  ideas  which  were  deduced 
from  the  nature  of  man,  in  so  far  as  the  thought  of  the 
time  was  not  dominated  by  Rousseau.  The  naive  re- 
mark of  a  member  of  the  Convention  indicates  the 
spirit  in  which  France  was  provided  with  a  new  consti- 
tution. Feeling  called  upon  to  instruct  his  fellow  legis- 
lators regarding  "the  course  which  we  should  follow  in 
the  organization  of  society,"  he  continued,  "In  dealing 
with  these  weighty  questions  I  have  sought  the  truth 
in  the  natural  order  of  things  and  nowhere  else.  I  have 
wished,  if  I  may  so  express  myself,  to  preserve  the  vir- 
ginity of  my  thought."  l)  Reason  and  understanding, 
with  an  idealized  state  of  nature  as  a  background,  were 
the  only  sources  of  knowledge  which  were  consulted 
at  the  birth  of  constitutional  law. 

With  the  French  Revolution,  there  begins  the  exag- 
geration of  the  role  which  reason  and  understanding 
play  in  the  course  of  events.  The  practical  realization 
of  what  had  been  only  a  dream  to  the  rationalists  of 
the  eighteenth  century  has  since  filled  the  human  mind 

)   Rdimpression  de  I'ancien  Moniteur,  Vol.  XIII,  p.  378. 


190  THE   MODERN    IDEA  OF  THE   STATE 

with  the  value  of  the  intellectual  faculty  to  such  an 
extent  that  until  recently  it  was  regarded  as  the  only 
test  of  all  wisdom.  Is  it  surprising,  then,  that  Comte, l) 
when  he  wrote  his  famous  lecture  on  "Social  Dynam- 
ics," should  have  made  social  depend  upon  intellec- 
tual development  and  thus  have  arrived  at  the  con- 
clusion that  it  is  "intellectual  evolution  which  deter- 
mines essentially  the  main  course  of  social  phenom- 
ena?" Hence  science  holds  the  highest  place.  Accord- 
ing to  Quetelet,  2)  science  is  the  only  spiritual  posses- 
sion which  really  advances;  according  to  Buckle,  3)  it 
is  the  only  essential  factor  in  progress,  since  the  moral 
endowment  of  man  remains  stationary. 

Thus  the  extent  to  which  science  has  influenced 
social  life  is  very  highly  estimated.  Reference  is  made 
to  the  discovery  of  the  lightning  rod  by  Franklin,  the 
steam  engine  by  Watts,  to  the  free-trade  doctrine  of 
Adam  Smith,  to  the  influence  of  Rousseau  on  practical 
politics,  to  the  Kantian  doctrine  of  the  incapacity  of 
human  reason  to  prove  the  existence  of  God.  All  this, 
as  Loria  says,  4)  served  to  support  the  view  that  the 
intellectual  faculties  occupy  the  first  place  in  human 
development.  Until  far  into  the  nineteenth  century  the 
cultivation  of  these  faculties  occupied  a  prominent 
place  in  practical  politics.  In  1867  a  public  commission 
in  this  country,  summing  up  in  its  official  report  the 
results  of  a  four  years'  investigation  of  the  condition 


*)  Cours  de  philosophic  positive,  Lecture  51 ;  cf.  Lecture  46. 

a)  Physique  sociale,   1867,  Vol.  II,  p.  396. 

3)  History  of  Civilization  in  England,  Vol.  I,  Ch.  iv,  1872,  pp.  180ff. 

«)  La  Sociologia,  1900. 


THE   DEVELOPMENT  OF  LAW  191 

of  child  labor  in  factories,  formulated  its  conclusions 
as  follows:  "We  cannot  advise  either  the  establishment 
of  a  minimum  age  for  children  working  in  factories  or 
the  regulation  of  hours  of  labor.  The  only  means  from 
which  we  expect  good  results  is  to  oblige  all  parents 
to  send  their  children  to  school  regularly  during  a 
number  of  years  beginning  with  a  certain  age." 

This  intellectual]  st  tendency  had  a  strong  influence 
upon  the  science  of  law  and  politics  as  well  as  upon 
their  practice.  Hence  there  arose  an  endless  stream  of 
dogmas,  doctrines,  concepts,  and  logical  devices  which 
controlled  politics,  legislation,  the  administration  of 
justice,  and  unfortunately  science  itself;  in  fact,  this 
amounted  to  a  dictatorship  of  the  intellect.  For  where 
dogmas  and  doctrines  control  our  thought,  they  set  up 
a  formidable  obstacle  against  the  entrance  of  facts  into 
our  minds.  Reality  must  break  its  way  in  before  doctrine 
loses  its  control  over  the  mind.  All  sciences  have  had 
this  experience  and  still  have  it.  In  particular,  however, 
the  mental  and  moral  sciences  (Geisteswissenschafteri), 
especially  theology,  enchain  the  mind  with  their  dog- 
mas, because  these  sciences  contain  an  emotional  ele- 
ment which  makes  it  painful  to  abandon  precon- 
ceived ideas. 

How  great  a  role  has  been  played  in  political  science, 
for  example,  by  the  doctrine  of  the  trias  politico, ;  by 
the  "concept"  of  the  constitution,  "that  which  sup- 
ports everything  else,"  as  Thorbecke  has  said;  by  the 
"nature"  of  constitutional  monarchy;  by  the  concept 
of  "fundamental  rights;"  by  the  idea  of  "representa- 
tion;" by  the  "principle"  of  the  separation  of  church 


192      THE  MODERN  IDEA  OF  THE  STATE 

and  state;  by  the  concept  of  "freedom"  and  the  doc- 
trine of  "sovereignty." 

A  list  of  the  practical  measures  that  have  been  re- 
tarded or  strangled  at  birth  merely  because  these  fictions 
have  been  put  forward  as  scientific  realities  would  be 
only  too  wearisome.  It  is  enough  to  say  that  all  these 
formulas  represented  accurately  enough  a  phase  of 
history  but  contain  not  a  single  stimulating  idea  for  the 
present.  Nevertheless,  they  drag  along  from  generation 
to  generation  and  render  present-day  reality  unintel- 
ligible by  overlaying  it  with  a  crust  of  obsolete 
science. 

The  case  is  not  different  in  the  field  of  law  but  rather 
worse.  In  this  field  an  even  more  rigid  strait-jacket 
has  been  fitted  to  thought.  The  labor  of  centuries  has 
been  expended  in  fashioning  it  and  it  is  nearly  impos- 
sible to  free  oneself  from  it.  A  man  can  in  no  case  be 
a  judge  unless  he  has  learned  to  see  social  life  in  the 
form  of  logical  fictions  which  jurists  have  built  up  in 
the  course  of  time  and  which  have  frequently  become 
embedded  in  the  statutes  also.  Is  it  necessary  to  ap- 
pend here  a  list  of  these  concepts?  Is  it  necessary  to 
recall  the  notorious  "legal  personality,"  the  frightful 
doctrine  of  "possession,"  the  construction  of  the  tortious 
act?  Everything  is  involved  in  concepts  and  systems 
and  these,  with  deductions  from  them,  dominate  legal 
relations.  And  for  the  most  part  all  this  can  claim  no 
further  meaning  than  that  of  a  form  in  which  our  social 
life  now  fits  only  in  the  slightest  degree,  since  the 
social  life  has  changed  while  the  form  was  being 
made. 


HE   DEVELOPMENT  OF  LAW  193 

When  we  have  canvassed  this  situation,  we  realize 
for  the  first  time  how  difficult  it  was  for  reality  to 
affect  men's  minds,  since  reality  could  be  seen  for  the 
most  part  only  through  the  prism  of  a  priori  concepts 
and  historical  tenets.  Much  space  must  be  cleared  in 
the  thicket  of  our  dogmatism  before  we  can  get  a 
glimpse  of  reality  as  it  is.  Direct  contact  with  reality 
has  been  lost  because  of  all  these  concepts,  principles, 
systems,  and  postulates.  So  long  as  we  do  not  lay  aside 
the  dogmatic  mirror  in  which  we  collect  our  percep- 
tions, our  minds  are  held  fast  by  constructions  from 
the  history  of  earlier  generations.  We  need  to  be  enrolled 
in  a  new  school,  a  school  which  shall  make  us  capable 
of  seeing  and  understanding  things  with  our  own  senses 
and  not  with  a  mind  permeated  with  historical  dog- 
mas. Our  inner  life  has,  as  it  were,  been  broken  up  into 
fixed  patterns  and  thus  its  spontaneity  has  been  lost. 
But  the  change  is  no  longer  far  off  and  the  new  guide 
can  already  be  discerned. 

III.  The  Emotional  Life.  As  soon  as  men  tried  to  put 
into  practice  the  intellectualist  ideas  and  concepts 
which  were  spun  especially  in  the  eighteenth  century, 
the  one-sidedness  of  rationalism  made  itself  evident 
and  a  reaction  against  its  domination  began.  This 
reaction,  however,  overshot  its  mark.  It  not  only  be- 
lieved that  a  test  of  the  first  fruits  of  rationalism 
showed  that  this  view  of  life  must  be  rejected  outright, 
but  it  took  refuge  in  a  diametrically  opposite  view  of 
life  which  referred  all  progress  to  the  forces  of  the 
unconscious.  It  even  made  bold  to  interpret  facts  as 

The  modern  idea  of  the  State.  13 


194  THE   MODERN   IDEA   OF  THE    STATE 

the  symbols  of  an  immanent  will  whose  direction  no 
one  could  determine  and  to  which  one  might  therefore 
attribute  any  content  he  liked.  This  tyranny  of  facts,  as 
the  event  shows,  was  taken  advantage  of  to  glorify  the 
existing  order.  Consequently,  if  one  wishes  to  judge 
rationalism  rightly,  he  needs  an  entirely  different 
foundation  from  that  offered  by  the  merely  historical. 
At  the  beginning  of  this  chapter  we  stated  the  matter 
clearly  when  we  said  that  we  are  on  the  point  of  chang- 
ing leaders  and  that  the  guidance  of  life  is  passing  from 
the  intellect  to  the  feelings.  This  means  that  the  intel- 
lect must  lose  its  primacy  also  in  the  development  of 
law.  We  are  about  to  close  the  period  of  our  history  in 
which  the  leading  role  was  played  by  a  rationalism 
which  saw  in  the  intellect  the  only  source  for  the  knowl- 
edge of  reality,  which  opposed  dogmas  and  doctrines 
to  reality,  and  which  confined  the  latter  in  a  rigid  form 
of  thought  where  logic  alone  was  decisive.  We  are  on 
the  point  of  discarding  everything  in  the  field  of  law 
that  is  included  under  the  ill-famed  phrase,  "a  juris- 
prudence of  concepts."  In  its  place  we  shall  recognize 
the  precepts  of  the  emotional  life  as  a  new  source  of 
our  knowledge  of  duty.  We  are  perfectly  aware  of  the 
misunderstanding  to  which  this  statement  may  give 
rise.  If  one  is  to  draw  hasty  conclusions,  he  can  scarcely 
find  a  more  accomodating  material  than  by  ringing 
the  changes  on  the  opposition  between  understanding 
and  feeling.  Sages  never  cease  reminding  us  how  cir- 
cumspect and  sceptical  a  person  need  be  if  he  is  to 
guide  his  conduct  amid  the  solicitations  of  feeling.  In 
particular,  when  one  penetrates  into  the  psychology 


THE    DEVELOPMENT   OF   LAW  195 

of  the  masses,  one  meets  an  emotional  life  so  uncon- 
trolled that  this  source  of  conduct  is  attended  by  the 
greatest  dangers.  This  merely  proves,  however,  that, 
just  as  the  intellect  must  be  prevented  from  descend- 
ing to  dialectic,  so  limits  must  be  set  to  the  dominion 
of  feeling,  if  it  is  not  to  degenerate  into  a  diffuse 
sort  of  life  controlled  by  momentary  impulses. 

Nevertheless,  we  cannot  on  that  account  abandon 
tfteproposition  that  the  operation  of  the  emotional 
life  is  the"  most  powerful  taCtor  in  progress  and  that  our 
time  grows  more  and  more  conscious  of  this  fact.  It 
is  a  fact  of  universal  experience  that  the  understanding 
manifests  itself  as  a  way  of  explaining  events  and  of 
guiding  us  in  the  endless  multiplicity  of  concrete  things. 
On  the  other  hand,  an  obligation  to  act  or  to  refrain 
from  acting  arises  not  from  the  intellect  but  from  the 
emotions.  Indeed  the  whole  world  of  norms  has  its 
basis  in  this  part  of  our  personality  and  thence  arises 
that  sense  of  values  which  is  the  guide  of  life.  On  the 
other  hand,  this  sense  of  values  can  teach  us  nothing 
about  the  relations  of  cause  and  effect.  In  this  matter 
the  decision  rests  solely  with  the  intellect,  even 
though  it  frequently  happens  that  the  decision  is, 
non  liquet. 

But  there  is  no  need  to  go  deeper  into  this  difference 
of  functions  here.  Since  the  eighth  decade  of  the  last 
century  practice  has  made  clear  to  every  one  that  the 
emotional  life,  which  up  to  that  time  had  been  re- 
pressed, is  putting  itself  forward  and  claiming  the  leader- 
ship. Thus  it  not  only  brought  to  an  end  .he  period  of 
rationalism  but  also  burst  the  bonds  of  the  merely 


196  THE   MODERN    IDEA   OF  THE   STATE 

historical.  Buried  as  it  was  under  the  deposit  which 
history  and  tradition  had  left  in  our  minds,  forced 
down  by  the  accumulation  of  highly  rationalized  sys- 
tems and  doctrines,  the  emotional  life  had  difficulty 
in  gaming  utterance.  Men  still  relied  on  facts  and  dog- 
mas, which  weakened  the  sense  of  responsibility  and 
increased  the  want  of  normative  values.  This  insight 
is  now  aroused.  It  penetrates  more  and  more  both 
public  and  private  life.  It  has  set  in  motion  the  process 
of  purification  which  we  now  perceive  in  the  fields  of 
law  and  politics. 

For  is  it  not  owing  to  this  insight  that  men  have  been 
made  conscious  of  new  fields  of  governmental  activity 
to  which  the  sovereign  had  remained  entirely  indif- 
ferent and  which  the  understanding  had  shown  itself 
h unable  to  discover?  In  particular,  is  not  the  origin  of 
ah1  "social  legislation"  to  be  sought  in  the  emotional 
life,  and  has  not  the  passage  of  this  legislation  meant 
the  rejection  of  a  large  part  of  the  intellectualist  creed 
of  the  preceding  generation  ?  The  case  is  the  same  with 
the  rise  of  the  School  of  Free  Law,  which  seeks 
to  satisfy  the  living  impulse  toward  justice  in  us  by 
opposing  a  merely  intellectual  method  of  legal  devel- 
opment. Has  not  the  freer  mental  life  advanced  the 
social  position  of  women  by  leaps  and  bounds,  in  spite 
of  historical  fact?  Nor  should  we  forget  how  in  the 
state  subordination  to  a  personal  authority  has  begun 
to  give  place  to  the  rulership  of  law,  thus  completing 
the  establishment  of  an  inward  authority.  At  all  points 
the  struggle  with  the  merely  historical  and  the  purely 
rational  has  spread  from  this  center.  The  concept  of 


THE    DEVELOPMENT   OF   LAW  197 

"punishment"  is  falling  into  the  background,  for  even 
though  the  old  names  are  retained,  the  special  admin- 
istration of  criminal  justice  for  children,  measures  for 
the  reform  of  the  delinquent,  and  legislation  in  behalf 
of  the  mentally  defective  have  either  made  their  entry 
or  are  approaching,  under  the  impulse  of  a  feeling  of 
justice  which  rejects  all  dogmatic  and  rationalist  con- 
siderations. Note  also  how  differently  the  duty  of  the 
sovereign  toward  poverty  is  now  conceived  as  com- 
pared with  earlier  times.  It  would  be  impossible  now 
for  a  cabinet  minister  to  say  publicly  and  without 
meeting  contradiction,  -  -  as  one  did  in  this  country 
in  1870,  -  -  that  state  interference  is  justified  "only 
in  case  of  the  most  extreme  need  in  order  to  prevent 
loss  of  life."  Or  to  recall  the  still  stronger  statement  of 
a  minister  somewhat  earlier,  "The  needy  should  never 
receive  charity  from  a  civic  poor  board,  but  after  they 
have  endured  much  suffering  and  only  in  cases  of  the  most 
extreme  need,  they  may  obtain  what  is  indispensable 
from  the  police  authorities."  That  all  this  can  no  longer 
be  said,  much  less  done,  is  a  result  of  the  newly  awak- 
ened emotional  life,  which  reacts  in  a  quite  different 
way  and  far  more  powerfully  than  the  intellectual 
faculties  were  ever  capable  of  doing.  It  is  not  merely 
as  a  result  of  intellectual  considerations  that  woman 
suffrage  has  become  the  order  of  the  day.  The  influence 
of  feminine  sentiment  upon  the  consideration  of  public 
affairs  is  admitted  everywhere  to  be  a  necessary  sup- 
plement to  the  more  purely  intellectual  masculine 
mind.  Even  in  the  administration  of  justice  and  in  our 
highest  court,  decisions  are  based  upon  the  emotional 


198       THE  MODERN  IDEA  OF  THE  STATE 

life  and  the  "feeling  of  right"  is  acknowledged  as  a 
source  of  rules. 

It  is  evident  from  these  facts  that  a  new  basis  of  law 
has  become  an  essential  element  of  our  present-day 
civilization.  The  source  of  the  duty  to  obey  is  found  in 
an  ultimate  phase  of  consciousness  which  manifests 
itself  as  the  feeling  or  sense  of  right,  just  as  in  an  earlier 
period,  which  was  controlled  by  rationalism,  the  law 
was  derived  by  a  purely  intellectual  process.  This  new 
basis  of  law  arises  from  a  need  for  a  life  conducted  ac- 
cording to  normative  values.  Many  social  sciences, 
such  as  psychology,  ethics,  jurisprudence,  religion,  and 
metaphysics,  are  gaining  a  new  vigor  through  the  ef- 
fort which  each  is  making  in  its  own  field  to  discover  in 
the  motive  force  and  the  content  of  the  emotional  life 
the  means  for  satisfying  this  need,  and  to  make  clear 
the  norms  which  such  a  need  aims  at.  Thus  at  last  men 
dare  to  admit  that  the  emotional  life  furnishes  a  mo- 
tive for  valuable  actions  to  which  the  understanding 
could  not  have  moved  us.  In  a  former  and  prevailingly 
rationalist  period  this  view  would  have  been  greeted 
only  with  a  shrug.  Submission  to  the  actual,  which 
resulted  necessarily  from  the  appeal  to  the  merely 
historical,  has  likewise  come  to  an  end.  The  view  is 
spreading  more  and  more  that  standards  of  value  and 
therefore  the  sources  of  our  conduct  lie  in  ourselves  and 
not  in  things  or  in  their  historical  development.  By 
this  means  a  long  neglected  field  of  investigation  is 
opened  to  jurisprudence.  Its  immediate  task  is  now 
to  further  the  development  ol  law  by  establishing  tTTe" 
content  and  mode  of  operation  of  the  feeling  for  right. 


THE  DEVELOPMENT  OF  LAW  199 

To  this  end  it  must  keep  itself  in  the  closest  contact 
with  real  life  and  its  history.  By  accomplishing  this 
task  it  will  give  a  higher  validity  to  the  modern  idea  of 
the  state,  which  bases  the  state  upon  the  foundation 
of  law  and  recognizes  the  authority  of  law  as  exclu- 
sively  sovereign.  Thus  theTulership  of  the  state  has 
gained  a  more  real  and  a  more  enduring  basis  than  the 
most  complete  power  can  ever  afford  it. 


CHAPTER  IX 

THE   STATE 

I.  The  Old  Theory  of  the  State.  As  Jellinek  correctly 
observes,  x)  the  word  "state"  is  scientifically  very 
useful  because  it  connotes  nothing  and  therefore  serves 
as  a  protection  against  ambiguity  when  it  is  applied  to 
specific  phenomena.  But  to  what  phenomena  is  it 
applied?  Here  too  it  seems  as  if  we  had  to  be  content 
with  words.  The  Netherlands,  England,  Belgium, 
Prussia,  and  France  are  all  designated  as  states.  If  we 
consider  both  the  scientific  and  the  practical  meaning 
of  this  designation,  we  can  say  that  universally  it 
means  an  organization  including  a  portion  of  mankind 
which  occupies  a  definite  territory.  The  countries  men- 
tioned above  differ  from  one  another  in  the  details  and 
peculiarities  of  their  organization. 

But  what  organization  is  meant  in  this  case  ?  Accord- 
ing to  traditional  political  theory,  the  typical  feature 
of  the  organization  which  makes  a  portion  of  mankind 
into  a  state  lies  in  a  relation  between  persons  who  com- 
mand and  persons  who  obey.  Among  such  a  portion  of 
mankind,  there  emerge  certain  persons  who  issue  com- 
mands ;  in  contrast  with  these,  all  others  are  in  a  con- 
dition of  obedience.  Those  who  command  are  the 
rulers;  collectively  they  make  up  the  sovereign.  Those 

J)  Allgemeine  Staatslehre,  Ed.  2,  p.  129. 


THE   STATE  201 

who  obey  are  the  subjects  and  are  collectively  described 
as  the  people.  "Men  who  command  and  those  who 
obey  their  commands  make  up  the  substance  of  the 
state."  l)  Political  theory,  however,  or  at  any  rate  Ger- 
man political  theory,  is  not  content  with  this  fact,  but 
institutes  a  search  for  the  right  to  command  and  the 
duty  to  obey.  This  reciprocal  right  and  duty  is  deduced 
from  the  natural  relation  between  a  community  and 
its  members.  In  the  case  of  the  state  we  have  to  do 
with  such  a  relation.  Since  certain  persons  are  deemed 
to  be  organs  of  the  community,  they  are  naturally 
invested  with  the  superior  value  of  the  community. 
Consequently  they  possess  a  natural  right  to  command 
and  accordingly  the  members  of  the  community  are 
subject  to  a  natural  duty  to  obey. 

Duguit's  political  theory  also,  in  explaining  the  organ- 
ization typical  of  the  state,  starts  from  the  fact  that 
there  are  those  who  rule  and  those  who  are  ruled.  But 
for  him  the  fact  is  enough;  there  is  no  right  to  com- 
mand. "The  truth  is  that  political  power  is  a  fact  which 
in  itself  has  no  quality  either  of  legitimacy  or  of  ille- 
gitimacy." 2)  "No  one  has  the  right  to  command  others ; 
neither  an  emperor,  nor  a  king,  nor  a  parliament,  nor 
a  popular  majority  is  able  to  impose  its  will  as  such." s) 
How  such  a  fact  came  to  be  is  an  historical  question. 
In  general,  the  distinction  between  "rulers"  and 
"ruled"  is  a  result  of  the  fact  that  in  all  social  groups  the 
stronger  rule;  "the  stronger  impose  their  will  upon  the 


1)  Jellinek,  Ibid.,  p.  169. 

2)  Trait^  de  droit  constitution™ I,  1911,  Vol.  I,  p.  37. 
»)  Ibid.,  pp.  41,  88. 


202  THE   MODERN   IDEA  OF  THE   STATE 

weaker."  But  in  what  does  this  strength  consist?  "This 
greater  power,"  says  Duguit,  "presents  itself  under 
very  different  guises:  sometimes  it  has  been  a  purely 
material  force,  sometimes  a  moral  and  religious  force, 
sometimes  an  intellectual  force,  sometimes  (and  very 
often)  an  economic  force ....  Thus  in  all  countries  and 
in  all  times  those  who  are  materially,  religiously, 
economically,  morally,  intellectually,  or  numerically 
stronger  have  sought  to  impose  their  will  upon  others 
and  have  in  fact  done  so."  l)  Even  in  the  case  of  Du- 
guit, however,  this  fact  is  not  the  last  word  which  he 
has  to  say  in  describing  the  organization  typical  of  the 
state.  For  the  rulers  are  subject  to  the  commands  of 
the  law.  The  "public  authority"  not  only  has  the  task 
of  carrying  out  the  law  but  is  also  obliged  by  law  to  do 
this.  "The  state  is  founded  upon  force  but  this  force  is 
lawful  when  it  is  exercised  according  to  law."  2)  This 
carrying  out  of  law,  —  to  which  the  law  itself  supplies 
the  obligation,  —  shows  itself  in  three  directions,  in 
the  legislative,  judicial,  and  executive  functions.  The 
real  authority  which  creates  standards  of  conduct  is, 
therefore,  the  law,  but  this  law  itself  is  natural  law, 
just  as  in  the  case  of  the  German  school ;  it  is  a  modern- 
ized form  of  Hugo  Grotius's  law  of  nature.  The  theory 
starts  from  the  fact  that  man  lives  in  a  community 
and  must  do  so.  A  community  is  inconceivable  without 
solidarity  or  "social  interdependence."  Grotius  would 
have  called  it  the  "social  force"  (vis  socialis).  This  soli- 
darity, "by  virtue  of  its  very  nature,"  prescribes  rules 

*)  Ibid.,  pp.  37  f. 
2)  Ibid.,  pp.  41,  88. 


THE   STATE  203 

of  conduct  to  man,  viz.,  to  do  nothing  which  would 
injure  solidarity  and  to  do  everything  which  may 
strengthen  and  develop  it.  "The  whole  objective  law 
is  summed  up  in  this  formula,  and  the  positive  law,  if 
it  is  to  be  valid,  ought  to  be  the  expression,  the  devel- 
opment, or  the  application  of  this  principle."  x)  The 
law  to  which  each  and  every  person,  including  even 
the  rulers,  is  subject  has  therefore  its  own  independent 
basis.  And  Duguit  rates  the  binding  force  of  this  natu- 
ral law  so  high  that  the  positive  law  is  valid  only  "if 
it  is  the  expression  of  this  objective  law."  For,  as  the 
author  says,  "the  law  derives  its  binding  force  not 
from  the  will  of  the  rulers  but  from  its  conformity  to 
social  solidarity."  2)  In  this  way,  therefore,  it  becomes 
possible  to  assume  what  the  German  school  had  tried 
in  vain  to  prove,  viz.,  that  the  state  is  bound  by  posi- 
tive law.  According  to  German  political  theory,  posi- 
tive law  gets  its  binding  force  from  the  authority  of 
the  state,  and  therefore  as  a  matter  of  principle  can 
never  control  the  state  itself.  For  Duguit,  the  positive 
law  (Gesetz)  is  binding  because,  —  and  in  so  far  as,  - 
it  expresses  law  in  general  (Recht),  and  the  latter  is 
valid  independently  of  the  state;  that  is,  the  term 
state  signifies  "not  that  so-called  collective  and  sov- 
ereign person,  which  is  a  fiction,  but  the  real  persons 
who  actually  hold  power."  3) 

These  conceptions  of  the  type  of  organization  de-     , 
noted  by  the  word  "state"  form  the  two  most  important 


l)  Ibid.,  p.  17. 
»)  Ibid.,  p.  53. 
3)  Ibid.,  p.  49. 


204  THE   MODERN   IDEA   OF  THE    STATE 

points  of  view  regarding  it.  We  have  omitted  the  politi- 
cal theory  which  considers  the  power  of  the  sovereign 
as_  .a  jivine  qgh*  ^"^  which  accordingly  supports  the 
natural  right  to  sovereignty  by  the  law  of  God.  We  have 
dealt  with  this  theory  elsewhere.  1)  Since  this  view  is 
an  article  of  faith  rather  than  a  representation  of  real- 
ity, it  is  not  susceptible  of  scientific  investigation.  It 
is  unnecessary  also  to  say  more  about  other  views,  such 
as  that  of  popular  sovereignty,  or  its  more  recent 
restatement  under  the  name  of  "national  sovereignty," 
which  is  as  far  removed  from  reality  as  the  "social  will" 
or  the  "general  will."  2)  These  conceptions  do  not  ex- 
plain the  facts  but  rather  seek  to  adapt  them  to  a 
preconceived,  abstract  theory. 

II.  Criticism.  As  regards  the  two  conceptions  of  the 
state  under  consideration,  it  is  scarcely  necessary,  in 
view  of  what  was  said  in  the  preceding  chapters  about 
the  basis  of  authority,  to  discuss  their  insufficiency 
beyond  showing  that  they  are  at  variance  with  the 
facts.  Both  maintain  the  actual  existence  of  an  order 
marked  by  the  relation  of  ruler  and  ruled,  but  both 
lose  sight  of  one  principal  point,  viz.,  that  the  rulers, 
according  to  the  view  now  accepted  in  all  civilized 
states,  derive  their  rulership  from  the  positive  law. 
This  view,  in  the  frequently  quoted  words  of  Laband 
about  the  subordination  of  the  state  to  law,  is  accepted 
as  a  settled  element  of  our  civilization.  The  rights  of 


*)  Die  Lehre  der  Rechtssouverdnitdt,  1906. 

2)  Esmein,   tUments  de  droit  constitutionnel,  Barthelemy  ed.,  1914. 
pp.  280  ff. 


THE    STATE  205 

electors,  the  powers  of  members  of  parliament,  the 
authority  of  the  judiciary,  the  powers  of  the  police 
and  the  army  are  all  determined  by  law  and  can  be 
determined  in  no  other  way.  Hence  there  is  in  reality 
no  authority  which  does  not  have  to  justify  itself  as 
lawful.  Neither  Duguit  nor  the  German  school  is  aware, 
or  at  any  rate  sufficiently  aware,  that  the  theory  of 
the  legal  state  has  changed  from  a  theory  to  an  actual 
fact.  They  do  not  realize  that  the  present  generation 
accepts  as  a  fundamental  truth  the  proposition  that 
except  through  the  law  no  one  can  rule,  even  though 
he  be  invested  with  the  crown,  the  toga,  or  the  general's 
baton.  This  truth  which  is  continually  forced  upon  us 
in  practical  affairs  is  precisely  the  distinction  in  prin- 
ciple between  the  modern  idea  of  the  state  and  the 
notion  of  a  natural  relation  between  the  rulers  and  the 
ruled,  the  sovereign  and  the  people.  The  latter  notion 
did  indeed  occupy  men's  minds  up  to  the  rise  of  the 
constitutional  system,  that  is,  until  legislation  began 
again  to  take  its  rise  from  the  popular  sense  of  right. 
Thus  the  German  school  is  always  preoccupied  with 
an  idea  of  the  state  which  is  typical  of  the  ancien 
regime.  In  accordance  with  the  actual  facts  of  that  day, 
the  person  of  the  ruler  was  conceived  to  be  the  bearer 
of  an  independent  authority  and  a  special  basis  for 
this  authority  had  to  be  sought.  The  German  school 
has  merely  abandoned  the  foundations  of  this  author- 
ity which  were  recognized  by  the  ancien  regime.  The 
will  of  God  or  the  will  of  the  people,  together  with  the 
various  forms  of  the  contract  theory,  has  disappeared. 
In  their  place  a  juristic  personality  has  been  brought 


206      THE  MODERN  IDEA  OF  THE  STATE 

forward,  called  indifferently  the  state  or  the  commu- 
nity, which  is  alleged  to  be  the  possessor  of  all  the  au- 
thority formerly  wielded  as  personal  power.  It  is  fur- 
ther alleged  that  the  actual  rulers  derive  their  legal 
competence  from  their  relation  to  this  personality. 
This  proposition  has  the  same  characteristics  as  the 
fictions  of  political  theory  in  the  ancien  regime',  it  is 
dialectic  biased  by  propaganda.  There  is,  however, 
this  important  difference :  The  ancien  regime  was  seek- 
ing a  basis  for  something  real,  while  at  present  the 
theory  is  trying  to  make  a  basis  for  something  that 
has  ceased  to  b$  real.  At  the  present  time  political  life 
knows  nothing  of  self -justifying  sovereigns.  Any  one 
who  is  to  rule,  even  though  he  have  an  historical  title 
from  the  past,  must  derive  his  authority  from  the  law. 
Hence  it  has  become  a  waste  of  effort  to  seek  the  basis 
of  an  authority  that  has  ceased  to  exist  as  independent. 
Duguit's  political  theory^ieads  to  a  similar  result.  In 
asserting  thaTTrTe^tdLe  ib"""s5mply  a  fact/'  this  scholar 
also  loses  sight  of  the  fact  that  the  position  of  the  ruler 
has  a  legal  ground  and  hence  arises  from  the  rules  of 
positive  law.  At  an  earlier  date  this  might  have  been 
doubted,  because  the  connection  between  the  sover- 
eign and  the  legal  system  which  controlled  the  people 
was  not  easy  to  show.  Consequently  it  was  necessary 
then  either  to  recognize  the  state's  exercise  of  power  as 
a  "simple  fact,"  as  was  done  by  Spinoza,  or  to  justify 
it  in  some  special  way,  as  was  done  by  most  of  the 
political  philosophers.  Duguit  adopts  precisely  Spino- 
za's point  of  view,  which  was  also  that  of  von  Haller 
at  a  later  time.  A  merely  factual  relation  of  power, 


THE   STATE  207 

-  that  of  the  stronger  to  the  weaker,  —  is  represented  asx 
a  product  of  nature.  This  view  is  made  no  more  accept-  / 
able  to  us  by  reference  to  the  various  social  forces, 

-  economic,  religious,  moral,  material,  intellectual,  - 
which  from  time  to  time  take  the  leading  place  in  so- 
ciety. For  even  though  the  influence  of  these  forces  be 
admitted  without  reserve,  this  in  no  way  invalidates 
the  other  fact,  which  is  decisive  in  this  case,  that  the 
rulers  owe  their  position  exclusively  to  the  positive  law. 
It  may  be  admitted  that  the  positive  law  does  not  yet 
correspond  to  our  ideal  of  it  and  that  the  sense  of 
right  which  gave  rise  to  it  was  defective ;  it  may  be 
admitted  that  the  persons  entrusted  with  law-making 
are  not  sufficiently  impartial  in  their  attitude  toward 
social  interests  of  a  material,  moral,  religious,  and  in- 
tellectual kind.  Still  this  does  not  alter  the  fact  that 
the  title  of  the  rulers  is  a  legal  title  founded  upon  posi- 
tive law.  This  is  the  point  which  deserves  all  the  em- 
phasis. If  this  be  borne  in  mind  there  is  no  need  to 
have  recourse  to  a  legal  system  embodying  the  law  of 
nature  and  arising  from  "solidarity"  to  keep  a  check 
upon  the  actual  rulers  and  prescribe  how  they  shall 
use  their  actual  power.  It  cannot  even  be  shown  as 
yet  that  the  law  can  be  deduced  from  solidarity,  for 
solidarity  is  an  abstraction  and  cannot  be  recognized 
as  an  active  principle  unless  it  can  be  shown  that  the 
sense  of  right  is  inspired  throughout  by  it.  This  would 
require  an  analysis  of  the  sense  of  right,  something 
which  has  only  just  been  undertaken  in  this  country  by 
Professor  Kranenburg.1)  But  even  if  the  deduction  were 

*)  Positiefrecht  en  rechtsbewustzijn,  1912. 


208  THE    MODERN   IDEA  OF  THE   STATE 

correct,  this  law  of  nature  would  be  confronted  by  the 
"simple  fact"  that  rulership  devolves  upon  certain  per- 
sons without  the  co-operation  of  law  either  natural  or 
positive,  just  as  will  is  a  natural  faculty  of  the  individ- 
ual. If  then  the  ruler's  title  cannot  be  questioned  on 
the  basis  of  law,  because  it  is  not  a  legal  title,  the  law 
is  confronted  by  a  sphere  of  power  at  the  entrance  to 
which  the  rulership  of  law  terminates.  For  this  sphere 
of  power  does  not  belong  to  the  world  of  norms  and 
hence  cannot  be  controlled  by  norms.  The  full  ruler- 
ship  of  law  cannot  be  reached.  The  theory  results  in  a 
twofold  power  built  upon  different  foundations,  and 
neither  power  can  affect  the  other. 

This  view  of  the  state,  therefore,  is  untenable ;  as  we 
have  already  remarked,  it  is  also  unreal.  For  every 
holder  of  a  public  office,  —  from  the  elector,  the  repre- 
sentative, and  the  king,  to  the  clerk,  the  minister,  and 
the  general,  —  occupies  his  office  by  virtue  of  a  legal 
title  which  not  only  regulates  his  duties  and  powers 
but  also  installs  him  personally  as  a  "ruler."  The  rela- 
tions between  Duguit's  "rulers"  and  "ruled"  are  not 
therefore  factual  relations  but  legal  relations.  And  since 
the  quality  of  being  a  ruler  is  bestowed  by  law,  there 
is  no  authority  which  is  not  rooted  in  law.  The  ruler- 
ship  inherent  in  the  state  can  therefore  be  traced  back 
to  a  single  authority,  that  of  the  law. 

III.  The  Modern  Theory  of  the  State.  As  a  result  of 
this  conclusion,  which  we  reach  again  and  again  from 
various  points  of  view,  it  follows  that  the  idea  of  the 
state  must  be  derived  from  the  law,  postponing  for 


THE   STATE  209 

later  consideration  the  question  of  what  else  is  to  be  in- 
cluded under  the  name  of  the  state.  When  the  state  is 
defined  in  this  way,  we  can  insist  that  its  essence  is 
manifested  in  the  operation  of  a  peculiar  and  independ- 
ent sense  of  right  among  a  portion  of  mankind.  A  people 
is  a  state  because  of  the  body  of  legal  relations  (Rechts- 
leben)  existing 'within  it.  And  one  state  differs  from 
another  state  because  of  the  particular  standard  of 
legal  value  applied  in  the  valuation  of  interests.  With 
every  new  source  of  legal  value  we  are  dealing  with  a 
different  body  of  legal  relations,  and  hence  with  a  dif- 
ferent state.  If  only  a  single  nationality  is  contained  in 
a  state,  its  peculiar  body  of  legal  relations  is  richer  and 
more  original,  and  all  the  members  of  the  nation  con- 
tribute to  defining  the  spiritual  value  to  be  found  in 
the  feeling  or  sense  of  right.  The  civilized  states  of  our 
own  time  differ  chiefly  in  respect  to  the  specific  body 
of  legal  relations  which  each  possesses,  based  on  its  dis- 
tinct nationality.  Consequently  their  inner  force  and 
significance  as  means  of  raising  mankind  to  a  higher 
spiritual  existence  is  infinitely  greater  than  in  earlier 
times,  when  the  life  of  the  state  was  discernible  only 
by  the  subjection  of  a  portion  of  mankind  to  a  sov- 
ereign standing  apart  from  the  people.  The  collective 
life  in  the  field  of  law  developed  late,  —  far  later  than 
in  the  fields  of  religion,  art,  and  literature.  But  since 
the  people  have  recovered  their  share  in  law-making, 
national  bodies  of  legal  relations  have  manifestly  begun 
to  grow  up,  as  well  as  a  body  of  legal  relations  for  the 
whole  of  humanity.  The  modern  idea  of  the  state  has  its 
foundation  specifically  in  these  bodies  of  legal  relations. 

The  modern  idea  of  the   State.  14 


210  THE   MODERN   IDEA   OF   THE   STATE 

In  proportion  as  the  spiritual  bonds  between  the 
members  of  a  community  are  loosened,  the  collective 
body  of  legal  relations  diminishes.  Unity  of  standard  is 
lacking  for  the  valuation  of  many  interests.  A  state 
which  includes  many  races  or  nationalities  can  be  held 
together  only  by  reducing  centralized  law-making  to  a 
minimum.  This  was  the  case  particularly  in  Austria. 
On  the  other  hand,  the  spiritual  bonds  between  peoples 
of  different  states  may  so  increase  as  to  develop  a  col- 
lective body  of  legal  relations  on  a  more  inclusive 
scale  and  thus  lead  to  a  higher  organization  of  the 
sense  of  right.  Germany  may  stand  as  an  example  of 
this  process. 

At  the  present  time  we  can  hardly  imagine  a  state 
without  some  organization  of  its  body  of  legal  relations. 
Still  the  idea  of  the  state  can  be  perceived  even  in  prim- 
itive social  conditions  where  the  spiritual  life  is  little 
differentiated  and  organized.  In  this  case  also  there  is 
a  relationship  which  proceeds  for  the  most  part  from 
the  instinctive  operation  of  a  peculiar  and  original 
spiritual  life,  though  the  sense  of  right  may  not 
have  made  itself  felt  as  a  distinct  element  of  this  life. 
Even  now,  as  we  shall  see  later,  the  field  of  inter- 
national law  illustrates  the  activity  of  an  unorganized 
sense  of  right.  In  this  field,  therefore,  the  idea  of  the 
state  is  manifested  in  a  merely  fragmentary  way. 

In  all  civilized  states,  however,  we  find  more  or  less 
developed  organs  to  express  the  sense  of  right  residing 
in  the  state.  This  is  the  reason  why  the  functioning  of 
a  legislative  organ  is  the  superficial  mark  of  statehood 
among  a  portion  of  mankind.  What  this  organ  is,  is 


THE   STATE  21  1 

determined  by  the  constitution  of  the  country  in  ques- 
tion. Nevertheless,  the  law  contained  in  the  consti- 
tution is,  in  the  last  analysis,  as  subject  to  change  as 
law  existing  anywhere  else.  History  is  full  of  examples 
in  which  unorganized  law  has  worked  changes  in  con- 
stitutional law  in  order  to  make  room  for  a  different 
legislative  organ  or  for  one  differently  constituted. 

In  every  organ  devoted  to  law-making,  the  idea  of 
the  state  may  be  perceived,  even  in  the  functioning  of 
communal  councils  and  provincial  legislatures  when 
they  possess  the  power  of  issuing  ordinances.  These 
organs,  however,  are  products  of  a  legal  system  which 
proceeds  from  the  operation  of  another  and  higher 
source  of  law  and  by  which  their  composition  and 
competence  are  determined.  This  other  and  higher 
source  of  law,  in  the  case  of  the  unitary  state,  lies  in 
that  sense  of  right  which  has  been  organized  and  cen- 
tralized for  a  community  including  the  communes  and 
provinces.  For  the  part  of  mankind  which  occupies  a 
given  territory,  this  sense  of  right  creates  all  legal  val- 
ue, including  that  which  determines  the  composition 
of  the  "legislative  authority"  itself.  Independently  of 
the  organized  method  of  law-making,  however,  the 
unorganized  sense  of  right  may  always  make  itself  felt. 
The  portion  of  mankind  included  within  a  community 
whiclTis  based  upon  sucfi  an  independently^peraling 
j»ense  of  right  is  a  state.  This,  to  be  sure,  does  not  mean 
that  all  law-making  depends  upon  the  state ;  the  sense 
of  right,  whatever  it  may  be,  cannot  be  made  to  cease 
working.  It  does  mean  that  the  finding  of  organs  for 
the  sense  of  right  lies  within  the  authority  of  the  state. 


212  THE   MODERN   IDEA   OF  THE    STATE 

Consequently  if  this  organization  is  ineffectual,  and  if 
it  therefore  grants  no  autonomy  to  the  local  communi- 
ties, the  citizens'  sense  of  right  is  seriously  limited  so 
far  as  the  consideration  of  local  interests  is  concerned. 
It  is  almost  equivalent  to  suppressing  their  legal  ac- 
tivity altogether. 

If  there  comes  into  existence  a  legislative  organ 
superior  to  a  number  of  existing  states,  this  may  de- 
velop into  the  organ  of  a  larger  legal  community. 
This  larger  community  attains  the  rank  of  a  state  when 
the  sense  of  right  contained  in  it  comes  to  act  independ- 
ently and  when  it  attains  an  organization  not  rooted 
in  the  legal  systems  of  the  member  states.  However, 
the  question  whether  a  composite  political  community, 
or  federal  state,  ought  to  be  termed  a  state,  and  whether 
this  name  should  be  applied  also  to  its  component 
parts,  is  not  of  much  practical  importance,  for  the 
competence  of  the  legislative  organs  can  be  determined 
for  the  most  part  from  the  written  constitutional  law. 
In  any  case  we  are  not  concerned  with  the  name  but 
with  the  nature  and  idea  of  the  state.  The  essence  of 
the  state  is  revealed  in  the  working  of  a  common  law 
which  forms  for  a  portion  of  mankind  an  independent 
source  of  legal  value.  Hence  Jellinek's  definition  of  the 
state  will  not  stand.  When  he  says,  "The  state  is  an 
association  of  men  residing  in  a  specific  territory  col- 
lectively endowed  with  an  underived  power  to  rule," 
we  might  accept  the  definition  literally  on  condition 
that  the  power  to  rule  be  traced  to  the  rulership  of 
law.  The  German  school,  however,  does  not  agree  to 
this,  but  starts  from  an  established  sovereign  authority 


THE    STATE  213 

independent  of  law.  This  is  precisely  the  fundamental 
difference  between  it  and  the  view  presented  in  this 
work. 

IV.  The  State  as  a  Community  of  Interests.  If  the 
state  is  a  community  having  an  independent  source  of 
legal  value,  its  sole  function  consists  in  defining  the 
legal  value  of  public  and  private  interests,  and  this 
legal  value  manifests  itself  in  obligations  imposed  upon 
certain  persons  to  preserve  these  interests.  The  prop- 
osition that  the  state  is  a  legal  community  and  there- 
fore shows  its  vitality  only  in  the  operation  of  the  sense 
of  right  does  away  with  the  notion  that  the  state  should 
be  regarded  as  wholly  or  in  part  an  institution  to  care 
for  specific  interests.  The  state  accordingly  is  not  a 
community  of  interests.  It  is  essential  to  the  modern 
ioteaTof  the  state  that  a  people's  character  as  a  state 
should  be  regarded  as  consisting  exclusively  in  the 
operation  of  an  independent  source  of  legal  value.  It 
does  not  consist  in  the  care  for  any  particular  interest 
whatever.  There  are  many  public  interests,  such  as 
peace,  order,  security,  trade,  coinage,  the  administra- 
tion of  justice,  legislation,  and  national  defence,  which 
have  a  legal  value ;  that  is,  obligations  to  preserve  them 
are  created  by  law.  But  they  are  no  more  interests  of 
the  state  than  all  the  private  interests  to  which  legal 
value  is  imputed  and  for  the  preservation  of  which  le- 
gal obligations  exist.  The  state  is  exclusively  a  regu- 
latory_-power.  Jf  preservation  of  the  public  interests 
mentioned  above  is  described  as  a  concern  of  the  state, 
this  can  be  done  only  on  the  ground  that  their  preser- 


214  THE   MODERN   IDEA  OF  THE   STATE 

vation  depends  upon  legal  obligations  shared  by  many 
persons.  The  basis  of  these  obligations  lies  in  the  legal 
value  which  is  imputed  to  the  interests  and  which  is 
derived  directly  or  indirectly  from  the  state's  original 
source  of  law.  The  same  is  true,  however,  of  the  obliga- 
tion of  parents  to  educate  their  children,  and  since 
this  is  a  legal  obligation,  we  should  have  to  say  that 
children  are  educated  by  the  state.  The  case  is  exactly 
the  same  with  all  acts  or  forbearances  to  which  citizens 
are  obliged  by  rules  of  law.  The  debtor  who  repays  bor- 
rowed money,  the  civil  official  who  carries  on  the  work 
of  a  bureau,  the  person  who  employs  his  labor  in  the 
interests  of  industry,  the  judge  who  prepares  and  man- 
ages a  case  or  draws  up  and  pronounces  decisions,  the 
member  of  parliament  who  attends  a  session  of  the 
legislature  and  votes  on  bills,  —  all  these  show  by  their 
action  the  power  of  law.  Hence  we  have  to  do  in  these 
cases  with  conduct  called  forth  by  the  state.  All  of  it 
is  business  of  the  state  or  none  of  it  is.  There  is  no  reason 
for  distinguishing  work  done  in  behalf  of  certain  in- 
terests (like  the  administration  of  justice,  the  postal 
and  banking  systems)  as  functions  of  the  state,  while 
work  done  in  behalf  of  other  interests  (like  education, 
manufacturing,  and  domestic  service)  is  not  regarded 
as  an  activity  of  the  state.  All  these  services  have  one 
thing  in  common:  They  are  carried  on  in  pursuance  of 
obligations  which  are  imposed  by  law  and  which  arise 
from  the  legal  value  imputed  to  the  various  interests. 
The  reality  of  the  state  is  rooted  in  its  control  over 
legal  value.  This  value,  so  far  as  its  origin  is  concerned, 
is  the  same  for  all  interests;  in  the  absence  of  such 


THE   STATE  215 

value  there  exists  no  obligation  to  serve  any  interest. 
In  this  control  the  state  lives  and  manifests  its  power. 

Consequently  we  must  free  ourselves  from  the  old 
notion,  which  is  emphasized  in  the  literature  of  con- 
stitutional law,  that  the  preservation  and  administra- 
tion of  law,  the  care  for  the  general  welfare,  security, 
and  order  are  among  the  functions  of  the  state  and 
that  the  essence  of  the  political  community  is  to  be 
found  in  the  realization  of  these  ends.  On  the  contrary, 
we  must  insist  that  the  state  is  nothing  except  a  legal 
community,  that  is,  a  portion  of  mankind  having  its 
own  original  legal  standard,  its  own  original  source  of 
law,  and  therefore  a  portion  of  mankind  having  its 
own  independent  body  of  legal  relations.  Hence  the 
state  performs  no  function  whatever  except  to  impute 
legal  value  to  certain  interests.  The  state  can  do  noth- 
ing except  to  impose  the  obligation  to  serve  public 
and  private  interests. 

Two  questions  arise  at  this  point :  First,  How  does 
the  notion  originate  that  the  essence  of  the  state  con- 
sists in  the  guardianship  of  specific  interests  ?  Second, 
Why  has  the  true  idea  of  the  state  as  a  legal  commu- 
nity emerged  in  our  own  times?  The  answer  to  these 
questions  is  given  by  the  history  of  the  state. 

V.  Origin  of  the  State  as  a  Community  of  Interests. 
Even  in  primitive  social  conditions  the  state  manifests 
itself  in  the  operation  of  a  spiritual  force  among  a  por- 
tion of  mankind.  The  community  in  this  case  depends 
upon  kinship  and  is  not  strictly  speaking  a  legal  com- 
munity, because  the  spiritual  forces  which  are  effec- 


216  THE   MODERN   IDEA  OF  THE   STATE 

tive  in  such  a  community  of  kinship  are  not  as  yet 
differentiated.  The  effects  of  law,  morality,  and  relig- 
ion can  scarcely  be  distinguished  from  one  another. 
But  even  though  community  of  kinship  may  have  led 
to  the  founding  of  some  states,  it  is  not  kinship  which 
makes  a  part  of  mankind,  a  nation  or  tribe,  into  a  state. 
This  is  accomplished  by  the  spiritual  unity  which  is 
erected  upon  this  biological  foundation. 

It  may  be  urged,  moreover,  that  the  operation  of 
this  spiritual  life,  and  therefore  the  operation  of  law, 
in  so  far  as  the  latter  can  be  distinguished,  may  be 
discerned  in  the  customs  and  modes  of  conduct  of  the 
members  of  the  community,  even  before  conscious 
law-making  takes  place. 

But  what  concerns  us  most  in  this  case  is  the  ques- 
tion of  the  interests  which  share  the  protection  of  the 
law.  We  may  mention  the  fact  in  passing  that  in  prim- 
itive states  the  individual  was  regarded  little  or  not 
at  all  and  hence  it  was  not  his  interests  that  received 
attention,  but  rather  those  of  the  group  or  family  to 
which  he  belonged.  Our  special  attention  must  be  di- 
rected again  to  the  very  general  interests  which  require 
to  be  upheld,  especially  the  military  interests,  which 
have  to  do  primarily  with  preserving  the  independ- 
ence of  the  tribe  against  other  tribes.  Anxiety  about 
these  interests  now  manifests  itself  in  the  recognition 
of  one  member  of  the  community  as  especially  desig- 
nated to  care  for  them.  Because  of  the  right  to  com- 
mand which  he  is  allowed  to  exercise  for  this  purpose 
he  gains  the  position  of  chief  of  the  tribe.  The  idea  of 
sovereignty  develops  about  him,  even  though  it  may 


THE    STATE  217 

be  confined  to  the  care  for  those  interests  which  have 
occasioned  his  rise.  In  the  beginning  the  power  of  the 
chief  is  limited  to  this  single  interest  of  maintaining 
tribal  independence  and  it  is  founded  in  the  same  legal 
system  which  governs  the  communal  life  of  the  tribe. 

But  when  civilization  is  somewhat  more  advanced, 
the  care  for  a  number  of  public  interests,  such  as  the 
administration  of  justice  and  trade,  is  taken  up  into 
the  chief's  sphere  of  action  and  consequently  his  power 
is  notably  increased.  Moreover,  the  fact  that  his  office 
becomes  hereditary  is  a  decisive  factor  in  giving  him 
a  commanding  position  and  also  in  determining  the 
legal  conception  of  his  position.  It  gives  rise  to  the 
notion  of  a  personal  right  to  authority,  a  notion  whicy  *- 
has  long  persisted.  The  typical  notion  of  sovereignth 
thus  emerges.  But  the  right  to  issue  binding  commands, 
which  is  involved  in  this  notion,  is  still  limited  at  the 
start  to  the  preservation  of  a  group  of  public  interests. 
So  far  as  these  interests  are  concerned,  the  members  of 
the  community  stand  in  a  relation  of  subjection  to  the 
chief.  In  the  nature  of  the  case  he  remains  an  official 
who  has  been  charged  with  the  comprehensive  task 
of  caring  for  a  certain  number  of  public  interests.  To 
this  end  he  makes  laws  and  imposes  duties  upon  the 
citizens. 

With  the  growth  of  absolute  monarchy  the  notion 
appears  in  practice,  and  still  more  in  political  theory, 
that  the  prince  is  not  only  an  organ  for  preserving  a 
certain  number  of  important  public  interests  and  thus 
competent  to  extend  the  protection  of  the  law  to  these 
interests,  but  that  he  is  also  the  organ  of  law  in  general. 


218      THE  MODERN  IDEA  OF  THE  STATE 

That  is,  he  is  regarded  as  competent  not  only  to  make 
effective  the  legal  value  of  certain  public  interests  but 
also  to  determine  legal  value  itself.  He  is  conceived  as 
the  organ  through  which  all  authority  is  exerted  and 
hence  all  interests,  private  as  well  as  public,  have  to 
derive  their  rights  from  him. 

The  vesting  in  absolute  monarchy  of  the  twofold 
function  of  preserving  interests  and  making  law  has 
controlled  the  theory  of  the  state  down  to  our  own  day. 
On  the  one  hand,  the  establishment  of  absolute  monar- 
chy brought  forward  the  conception  of  the  state  as  a 
legal  community ;  on  the  other  hand,  since  the  preser- 
vation of  a  number  of  public  interests  was  a  permanent 
function  of  the  prince,  the  purpose  and  essence  of  the 
state  was  conceived  to  lie  in  the  care  for  these  inter- 
ests. The  transformation  of  the  prince  from  an  offi- 
cial entrusted  with  the  care  of  certain  public  interests 
into  an  organ  of  the  state  conceived  as  a  legal  commu- 
nity has  seriously  hampered  an  understanding  of  the 
nature  of  the  state. 

In  particular  the  ideas  of  power  and  authority,  which 
are  necessarily  connected  with  the  state  as  a  legal  com- 
munity, are  transferred,  in  absolute  monarchy,  to  the 
public  interests  which  the  prince  must  preserve,  with 
the  result  that  these  interests  are  regarded  as  "pow- 
ers." Both  the  older  and  the  more  recent  literature 
is  saturated  with  this  conception.  The  "major  and 
minor  attributes  of  royalty"  are  regarded  as  elements 
of  the  prince's  right  to  govern,  when  in  fact  they  are 
nothing  more  than  so  many  public  interests  which  the 
prince  has  to  care  for.  In  the  same  way  Bodin's  "true 


THE    STATE  219 

marks  of  sovereignty"  embrace  a  number  of  princely 
rights  with  reference  to  certain  public  interests.  When 
at  a  later  time  the  need  for  a  decentralization  of  the 
functions  of  government  made  itself  felt  and  the  theory 
of  the  separation  of  powers  gained  general  acceptance, 
the  state  was  regarded  as  a  complex  of  three  great  pub- 
lic interests,  viz.,  the  interest  of  organized  legislation, 
the  interest  of  administering  justice,  and  the  interest 
of  enforcing  executions  and  punishments.  These  three 
interests  had  to  be  administered  as  separate  powers 
and  the  whole  range  of  the  state's  activities  was  con- 
fined to  administering  them.  This  view,  according  to 
which  the  state  is  a  complex  of  interests,  has  in  no  wise 
been  outgrown  by  contemporary  political  theory.  This 
is  especially  clear  in  the  German  literature,  where  we 
find  detailed  treatments  of  the  police  power,  the  fi- 
nance power,  the  ecclesiastical  power,  etc. 

Since  the  same  organ  which  can  exert  power  as  an 
organ  of  law  was  entrusted  also  with  the  care  of  public 
interests,  interests  and  powers  were  identified,  with 
the  result  that  the  public  interests  which  were  cared 
for  by  the  king  were  regarded  for  precisely  this  reason 
as  having  an  intrinsically  superior  value.  This  view 
brought  with  it  a  difference  of  principle  between  public 
and  private  law.  The  fact  was  overlooked  that  the  king, 
in  so  far  as  he  cared  for  certain  interests,  was  in  this 
respect  on  precisely  the  same  level  as  any  other  person 
who  had  a  similar  duty  and  that  he  could  claim  validity 
for  his  interests  only  in  so  far  as  their  legal  value  was 
recognized.  This  was  overlooked  because  the  king  was 
at  the  same  time  the  organ  of  the  state  and  as  such  had 


220  THE   MODERN   IDEA   OF  THE   STATE 

control  over  legal  value.  For  this  reason  whatever  the 
king  undertook  was  impressed  with  the  seal  of  author- 
ity. There  was  one  exception,  however,  which  has 
significance  for  the  opposition  between  the  state  as  a 
complex  of  interests  and  as  a  legal  community.  In  cer- 
tain cases  the  king  employed  the  ordinary  law  as  a 
means  of  caring  for  the  interests  entrusted  to  him  and 
so  acted  within  the  sphere  of  private  law.  When  this 
happened  it  was  perceived  that  he  did  not  really  act 
in  behalf  of  the  state  but  in  behalf  of  a  complex  of 
interests  and  that  these  interests  could  gain  advantage 
over  other  interests  only  by  proving  their  legal  value 
in  the  eyes  of  the  private  law.  On  the  contrary,  the 
state  "as  such,"  that  is,  as  a  source  of  law  which  creates 
its  own  values,  never  manifested  itself  otherwise  than 
by  exerting  authority.  The  perception  of  this  fact  called 
forth  the  distinction  between  the  state  as  sover- 
eign and  the  state  a^  fisc)  The  latter  term  expressed  in 
part  the  dormant  perception  that  in  this  case  it  was  not 
the  state  which  acted  but  one  of  the  many  social  in- 
terests, though  it  was  still  assumed  that  these  interests 
stood  in  close  relation  to  the  state,  since  they  were 
cared  for  by  the  same  organ  which  was  called  upon  to 
represent  the  state  as  a  legal  community. 

Hence  the  view  still  prevails,  that  the  state  itself 
acts  for  the  preservation  of  specific  interests,  such  as 
national  defense,  the  administration  of  justice,  trade, 
and  the  relief  of  the  poor.  This  is  due  to  the  circum- 
stance that  absolute  monarchy  (that  is,  the  form  of 
government  in  which  the  prince  is  the  organ  of  law) 
grew  up  by  concentrating  the  care  of  many  public  in- 


THE   STATE  221 

terests  in  one  and  the  same  organ  or  one  and  the  same 
functionary,  so  that  legislation  and  the  preserving  of 
interests  were  united  in  the  same  hands.  The  same 
circumstance  gave  rise  to  the  view  which  has  not  yet 
disappeared,  that  certain  public  interests  per  se,  and 
therefore  without  reference  to  any  process  of  legal  val- 
uation, have  a  superior  legal  status.  Hence  also  arose 
the  distinction  in  principle  between  public  and  private 
law,  which  appears  as  a  distinction  between  the  per- 
sons whose  mutual  relations  are  regulated.  In  private 
law  representatives  of  interests  confront  each  other  on 
equal  terms,  but  in  public  law  they  are  of  unequal 
standing,  the  sovereign  as  against  the  citizen-subject. 
Finally  the  same  circumstance  gave  rise  to  the  insol- 
uble question  whether  the  state  can  be  bound  by  law, 
a  question  which  was  answered  affirmatively  or  nega- 
tively according  as  the  state  was  conceived  as  the  pos- 
sessor of  a  complex  of  public  interests  or  as  a  legal  com- 
munity. 

VI.  Origin  of  the  State  as  a  Legal  Community.  We 
come  now  to  the  second  of  the  two  questions  raised 
above,  viz.,  Why  has  the  true  idea  of  the  state  finally 
emerged  in  practice  and  theory?  Why  should  we  now 
be  coming  to  consider  the  state  as  exclusively  a  legal 
community,  and  hence  as  manifesting  the  operation  of 
an  original,  independent  source  of  value? 

The  constitutional  system,  at  least  on  the  Continent, 
made  its  entrance  at  the  end  of  the  eighteenth  and 
beginning  of  the  nineteenth  century  in  the  form  of  the 
constitutional  monarchy.  Its  importance  consisted  for 


222  THE   MODERN   IDEA   OF  THE   STATE 

• 

the  most  part  in  the  fact  that  the  people  came  to  share 
in  the  exercise  of  the  state's  authority.  The  "people" 
in  this  case  was  not  indeed  the  whole  people.  Only  a 
small  group  of  the  socially  favored  gained  representa- 
tion. But  the  chief  point  was  that  the  exercise  of  the 
prince's  authority  had  to  be  shared  with  the  people. 
But  what  authority  was  thus  shared?  Was  it  the  au- 
thority of  the  prince  as  an  organ  for  preserving  a  cer- 
tain complex  of  interests,  that  is,  as  chief  functionary 
of  the  commonwealth,  or  the  authority  which  he  exer- 
cised as  an  organ  of  law?  As  is  well  known,  it  was 
chiefly  a  share  in  the  latter  authority  which  was  trans- 
ferred to  the  representative  body.  It  was  only  in  the 
exceptional  case  that  this  body  had  a  share  in  what  was 
called  the  administrative  function  of  the  state.  Aside 
from  co-operation  in  the  concluding  of  treaties,  the 
legislature's  share  in  administrative  matters  consisted 
mainly  in  its  control  over  the  budget  by  means  of 
which  it  had  a  voice  in  the  apportionment  of  revenues. 
The  most  significant  point,  however,  was  the  partic- 
ipation of  the  people  in  the  exercise  of  legislative  power. 
This  as  yet  did  not  mean  a  participation  in  legis- 
lation throughout  [its  entire  extent,  but  merely  a  share 
either  in  establishing  the  civil  and  criminal  law  or 
with  reference  to  certain  specified  objects.  In  particu- 
lar, the  competence  of  the  people  to  share  in  legislation 
for  public  interests  was  long  denied.  Its  interference 
was  excluded  from  all  that  concerned  public  peace, 
order,  security,  or  in  general,  in  the  terminology  of  the 
time,  the  police  power  of  the  state.  Hence  the  contro- 
versy over  the  extent  of  the  ordinance-issuing  power 


THE    STATE  223 

which  belonged  to  the  king  alone,  in  comparison  with 
the  legislative  power  which  he  had  to  share  with  the 
legislative  assembly.  But  however  limited  a  part  the 
representative  assembly  may  have  had  at  the  start  in 
exercising  the  authority  of  the  state,  the  first  step  was 
made  in  distinguishing  between  an  organ  of  the  state 
conceived  as  a  complex  of  interests  and  an  organ 
of  the  state  conceived  as  a  legal  community.  A  com- 
plete separation  of  these  two  aspects  of  the  state 
first  occurs  when  the  popular  assembly  begins  to 
function  as  the  sole  organ  of  law  and  the  administra- 
tion is  excluded  from  legislation,  either  because  of  the 
introduction  of  the  republican  form  of  government  or 
because  of  the  development  of  the  constitutional  mon- 
archy into  the  parliamentary  system.  The  administra- 
tion was  thus  left  with  the  function  of  serving  as  an 
organ  for  the  complex  of  public  interests,  and  the  com- 
bination of  both  attributes  in  one  person,  which  had 
been  introduced  by  absolute  monarchy,  came  to  an 
end.  The  separation  made  it  possible  to  subject  the 
"head  of  the  state"  to  the  law  and  also  to  meet  the  de- 
mand that  the  public  interests  of  which  the  king  was 
the  organ  should  be  effective  only  in  so  far  as  they  had 
a  legal  value,  like  any  other  interests.  The  accomplish- 
ment of  this  demand  is  expressed  in  the  theory  of  the 
legal  state. 

The  establishment  of  an  organ  intended  solely  for 
law-making  and  the  subordination  (required  by  the 
theory  of  the  legal  state)  of  monarchy  with  its  tradi- 
tion of  absolutism  gradually  brought  about  in  practice 
the  idea  that  the  real  essence  of  the  state  is  to  be  found 


224  THE   MODERN   IDEA  OF  THE   STATE 

in  the  community  of  law.  This  was  due  to  the  fact  that 
the  law  was  accepted  as  the  only  binding  authority, 
and  that  the  old  idea  of  sovereignty  which  posited  a 
personal  right  to  authority  had  disappeared.  Already 
in  Kant l)  we  find  this  notion  of  the  state  suggested 
when  he  says,  "A  state  (civitas)  is  the  union  of  a  num- 
ber of  men  under  laws."  After  him,  both  Stahl  and  Las- 
son  expressed  the  same  idea  in  the  formula :  "The  state 
is  the  objectified  legal  system."  But  in  neither  case  was 
the  idea  contained  in  this  formula  clearly  understood, 
because  at  that  time  legislation  had  still  only  a  slight 
importance,  occurred  only  occasionally,  and  in  its 
more  important  aspects  was  directed  rather  at  codifi- 
cation than  at  reform.  Attention  was  directed  far  more 
toward  the  every-day  activity  of  the  administrative 
authority  which  guaranteed  peace,  order,  and  security 
by  means  of  the  soldiery  and  police  who  were  subject 
to  its  commands,  or  toward  the  fiscal  authority  which 
took  from  the  citizens  a  part  of  their  income,  or  to- 
ward the  judiciary  which  made  the  administration  of 
justice  felt  by  the  people  through  its  power  to  punish 
or  to  levy  executions  upon  property.  This  was  an  au- 
thority, a  sovereign.  And  since  the  notion  of  sover- 
eignty had  been  bound  up  from  antiquity  with  the 
conception  of  the  state,  the  manifestations  of  the 
state's  authority  were  recognized  prevailingly  in  these 
activities.  The  idea  was  not  developed  that  all  these 
activities  were  the  outcome  of  the  legal  value  attrib- 
uted to  public  interests  and  that  accordingly  an  exer- 
cise of  authority  took  place  only  because  of  the  recog- 

*)  The  Philosophy  of  Law,  Sect.  45;  English  translation  by  W.  Hastie. 


THE   STATE  225 

nition  of  this  legal  value.  This  idea  could  mature  only 
after  legislation  got  into  full  swing  in  the  second  half 
of  the  nineteenth  century,  that  is,  after  legislation  for 
both  public  and  private  interests  began  to  flow  in 
great  volume.  In  the  case  of  public  interests,  this  legis- 
lation took  the  form  of  an  extension  of  administrative 
law  which  created  a  system  different  from  ordinary  law 
for  administrative  operations.  In  the  case  of  private 
interests,  the  rise  of  social  legislation  is  an  evidence  of 
the  increasing  control  of  law,  since  now  many  private 
interests  are  invested  with  a  legal  value  which  formerly 
had  no  legal  protection,  or  only  an  insufficient  one. 
Thus  it  becomes  clearer  and  clearerjhat  the  law  is  the 
only  essential  source  of  authority,  since  both  public, 
and  privatejlnterests  derive  their  force  from  it.  And 
this  reveals  at  once  the  essential  natureof  the  state,  viz.^ 
That  it  is  a  legal  community.  The  old  and  oft-repeated 
view  that  power  is  the  attribute  of  the  state, 
and  the  definition  of  the  state  as  a  manifestation  of 
power,  can  be  conceded  only  if  it  be  granted  that  this 
power  reveals  itself  in  law  and  can  have  no  effect  except 
in  issuing  rules  of  law.  Thus  it  must  be  insisted  that  the 
state  reveals  itself  only  in  the  making  of  law,  whether  it 
be  by  legislative  enactment  or  by  the  unwritten  law.  The 
state,  therefore,  does  not  manifest  itself  in  adminis- 
tering'jpunishments  or  by  levying  executions,  nor  in  the 
work  of  the  judge,  the  army,  and  the  police,  nor  in  the 
deliberations  and  balloting  of  representatives  and  the 
election  of  deputies,  nor  in  delivering  telegrams  and 
letters,  nor  in  building  railroads  and  mines,  nor  in  pay- 
ing pensions  to  the  aged  and  infirm,  nor  in  the  manage- 

The  modern  idea  of  the  State.  15 


226       THE  MODERN  IDEA  OF  THE  STATE 

ment  of  savings-banks.  In  a  word,  it  does  not  manifest 
itself  in  any  sort  of  activity  for  the  purpose  of  main- 
taining any  sort  of  interest  whatever.  We  regard  the 
state  as  manifesting  itself  solely  in  the  activity  of  those 
sources  of  value  which  raise  a  rule  to  the  status  of  a 
rule  of  law  and  by  virtue  f\  which  all  these  other  activ- 
ities are  carried  on. 

VII.  The  Organization  of  the  Community  of  Interests. 
It  would  be  desirable  for  both  political  practice  and 
political  theory  to  make  a  distinction  in  terminology 
between  the  state  as  a  legal  community  and  the  state 
as  a  complex  of  interests.  In  our  constitutional  law 
this  distinction  is  made,  for  the  state  as  a  complex  of 
interests  is  known  by  the  name  of  Kingdom  (Reich). 
But  as  a  rule  no  distinction  is  made  and  the  different 
branches  of  the  administration  are  regarded  as  parts 
of  the  state.  Thus  the  belief  is  fostered  that  the  essence 
of  the  state  is  shown  in  the  care  for  specific  interests. 
The  backwardness  of  terminology  in  this  respect  is 
due  to  the  idea  that  these  parts  of  the  administration 
have  their  point  of  unity  in  the  government  (Regierung) 
and  that  the  government  is  to  be  regarded  as  the  cen- 
tral organ  of  the  state.  But  as  time  goes  on,  this  idea 
accords  less  and  less  with  reality. 

In  the  first  place,  it  is  becoming  more  and  more 
clear  that  the  state  as  a  complex  of  interests  is  not  a 
unity.  It  is  not  a  unity  in  the  material  sense  that  any 
particular  group  of  interests  is  to  be  regarded  as  specif- 
ically interests  of  the  state,  nor  in  the  formal  sense 
that  all  public  interests  ought  to  be  subject  to  the  care 


THE    STATE  227 

of  one  and  the  same  organ,  the  government.  That  the 
state  is  not  a  unity  in  the  material  sense  has  been  shown 
repeatedly  in  what  has  already  been  said ;  we  have  had 
to  speak  throughout  of  a  complex  of  public  interests. 
It  is  possible,  of  course,  to  point  out  interests  which 
must  be  cared  for,  but  this  would  hold  equally  of  both 
public  and  private  interests.  Among  the  civilized  states 
of  our  own  time  there  is  no  longer  any  which  per- 
mits slavery.  In  every  state  the  interggtspf  all  ,individ- 
uals  must  have  their  weight  in  tHecommunitv.  the 

^__       — — _  __.---' 

same  a^tTie  public  interest  of  administering  justice  or 
transmitting  the  mail  must  be  provided  for.  But  the 
care  for  these  public  interests,  like  the  care  for  all 
others,  arises  from  the  legal  value  imputed  to  them 
and  hence  they  are  not  to  be  regarded  as  the  sole  inter- 
ests of  the  state,  nor  are  they  interests  of  the  state  in 
either  a  greater  or  a  less  degree  than  any  other  inter- 
ests which  are  accorded  the  protection  of  the  law. 

In  a  formal  sense  also  the  complex  of  interests  which 
falls  within  the  limits  of  the  state  does  not  form  a  uni- 
ty. For  the  time  has  long  gone  by  when  the  care  for 
these  interests  was  entrusted  to  a  single  organ,  the 
king,  who  performed  his  task  through  the  agency  of  a 
staff  of  subordinates.  A  decentralization  has  taken 
place  as  a  result  of  which  various  branches  of  the  serv- 
ice have  been  assigned  to  more  or  less  independent 
authorities.  We  perceive  this,  in  the  first  place,  in  the 
ministries,  which  are  so  many  independently  function- 
ing branches  of  the  administration,  at  least  in  those 
countries  where  ministerial  responsibility  has  displaced 
the  ruling  power  of  the  king.  This  decentralization 


228  THE   MODERN   IDEA  OF  THE   STATE 

is  still  more  evident  in  those  cases  where  special  organ- 
izations, standing  over  against  the  government  in  a 
more  or  less  independent  fashion,  have  been  created  to 
care  for  public  interests.  Sometimes,  as  in  the  case  of 
the  National  Postal  Savings  Bank,  these  are  treated  as 
legal  persons  and  are  so  considered  by  the  courts.  The 
oldest  independent  branch  of  the  administration  is 
that  entrusted  with  administering  justice,  at  least  in 
so  far  as  it  is  concerned  with  the  civil  and  criminal  law. 
At  the  present  time,  however,  many  other  public  in- 
terests have  organizations  which  are  independent  of 
the  government.  If  then  we  continue  to  speak  in  terms 
of  the  theory  of  the  separation  of  powers,  there  have 
developed  a  whole  group  of  powers  beside  the  judicial 
power.  The  post-office,  the  telephone  and  telegraph 
service,  the  bureau  of  mines,  the  mint,  the  public 
health  service,  the  universities,  the  insurance  depart- 
ment, the  bureau  of  labor  inspection,  have  developed 
into  corporations  which  are  more  or  less  independent  of 
government  and  which  have  in  part  their  own  budgets 
of  income  and  expenditure.  Thus  it  is  possible  to  point 
out  a  number  of  branches  of  administration  in  which 
something  that  was  formerly  subject  to  the  direct  care 
of  the  government  under  the  name  of  its  executive 
power  has  now  become  independent  of  it.  In  the  case 
of  a  whole  group  of  interests  possessing  importance 
throughout  the  entire  territory  of  the  state,  the  plan 
of  committing  them  to  the  care  of  independent  organs 
has  been  realized,  or  is  in  process  of  being  realized.  But 
no  matter  how  far  this  decentralization  may  go,  there 
will  always  be  a  complex  of  interests  left  over  for  which 


THE    STATE  229 

the  government  will  have  to  provide.  The  latter  is  the 
organ  for  the  whole  country  (Reich),  that  is,  for  all 
those  public  interests  which  are  co-extensive  with  the 
state  and  which  are  not  provided  for  by  some  special 
organ.  The  French  publicist,  Duguit, l)  who  has  shown 
himself  unusually  sensitive  to  the  real  organization  of 
the  state  as  a  community  of  interests,  imagines  a  fut- 
ure in  which  all  branches  of  public  service,  including  the 
army  and  the  police,  shall  be  organized  as  independent 
corporations.  But  even  so,  there  would  always  be  left 
over  a  certain  number  of  transitory  and  unforeseen  in- 
terests for  which  the  government  would  necessarily 
serve  as  an  organ.  But  in  proportion  as  the  decentrali- 
zation of  administration  proceeds,  the  government's 
circle  of  activity  as  an  organ  of  interests  grows  nar- 
rower. Thus  the  government  could  devote  its  energy  to 
the  preparation  of  legislation  far  more  than  is  now  the 
case. 

Whatever  the  future  may  bring  forth,  however,  it  is 
already  clear  that  the  administration  of  public  inter- 
ests is  no  longer  united  in  the  organ  of  government  as 
it  formerly  was  when  the  whole  business  of  adminis- 
tration was  fa  unction  of  government  to  be  performed 
by  officials  subordinate  to  it.  The  unity  of  public  inter- 
ests must  be  sought  rather  in  an  association  of  adminis- 
trative departments  arising  from  law,  the  organiza- 
tion of  these  departments  being  itself  regulated  by  law. 
Thus  we  see  that  a  type  of  decentralization  is  gradually 
taking  place  quite  different  from  that  which  occurs  in 

l)  Le  droit  social,  le  droit  individuel  et  la  transformation  de  Vital,  1 908 ; 
Les  transformations  du  droit  public,  1913. 


230  THE    MODERN    IDEA   OF  THE    STATE 

the  self-government  of  provinces  and  communes.  This 
is  a  decentralization  according  to  interest  to  provide 
for  all  those  public  interests  which  concern  the  state  as 
a  community.  Up  to  the  present  time  this  decentraliza- 
tion has  appeared  only  by  way  of  establishing  independ- 
ent branches  of  administration  which  approximate  in 
form  to  corporations.  Legislative  competence  has  been 
given  them  only  in  sporadic  instances.  Thus  the  board 
to  supervise  the  enforcement  of  labor  legislation  has  the 
right  in  certain  cases  to  make  legal  rules  for  the  inter- 
ests entrusted  to  it. 1)  The  need  for  an  extension  of  leg- 
islative organs  has  already  been  pointed  out.  Hence 
it  is  not  improbable  that  administrative  decentraliza- 
tion will  result  in  giving  legislative  authority  to  the  ad- 
ministrative organs  of  those  interests  which  cannot  be 
adequately  cared  for  without  it. 

In  this  decentralization,  which  is  obviously  progress- 
ing steadily,  more  and  more  kinds  of  interests  appear 
as  public  interests  and  thus  call  into  being  special 
branches  of  administration  to  care  for  them.  This  shows 
clearly  that  the  concept  of  the  state  must  not  be  de- 
fined by  reference  to  the  care  for  any  specific  interests 
whatever,  but  solely  by  reference  to  the  unique  and 
original  source  of  law  from  which  all  these  interests, 
and  all  other  interests,  derive  their  legal  value.  But  po- 
litical science  is  still  dominated  by  a  concept  of  the 
state  derived  from  absolute  monarchy.  In  this  form  of 
government,  legislation  was  a  very  small  part  of  what  the 
prince  had  to  do,  his  normal  function  being  the  care  for 
a  certain  number  of  public  interests.  In  modern  politi- 

*)  Statutes  on  Safety  Devices  for  Labor  and  on  Stoneworkers. 


THE    STATE  231 

cal  theory  the  "state"  has  come  to  possess  the  power  of 
the  prince.  What  formerly  was  described  as  the  royal 
authority  is  now  regarded  as  the  task  of  the  state.  Thus 
the  twofold  function  which  was  included  in  the  royal 
authority  has  been  transferred  to  the  state,  though  it 
was  only  the  king's  law-making  function  which  could 
properly  be  regarded  as  an  activity  of  the  state.  Politi- 
cal theory  still  suffers  from  the  effects  of  this  confusion. 
In  all  the  duties  to  be  performed  in  the  care  for  public 
interests  it  perceives  something  different  from  the  du- 
ties to  be  performed  on  account  of  the  private  inter- 
ests of  citizens.  It  describes  the  former  as  affairs  of 
state,  because  by  putting  the  state  in  the  place  of  the 
king,  everything  that  was  formerly  done  by  the  king, 
including  his  care  for  public  interests,  has  to  be  re- 
garded now  as  the  task  of  the  "state."  It  was  forgotten 
that  in  these  cases  the  king  acted  merely  as  a  function- 
ary with  a  staff  of  subordinates,  just  as  now  hundreds 
of  thousands  are  put  directly  into  the  service  of  public 
interests.  The  meaning  of  the  state  does  not  lie  in  the 
care  for  any  interests,  but  solely  in  the  fact  that TTe^stab- 
lishes  the  legal  value  of  interests.  The  state  as  a  legal 
~oormTiunTty  was  un^^IrJEedly-brought  into  the  fore- 
ground by  absolute  monarchy,  but  since  this  form  of 
government  originated  by  concentrating  the  care  for 
public  interests  in  one  organ,  the  king,  it  was  responsi- 
ble also  for  the  fact  that  even  down  to  our  own  time  the 
essential  attribute  of  the  state  has  been  found  in  the 
care  for  this  or  that  interest.  It  was  not  until  the  intro- 
duction of  the  representative  system  that  law-making 
was  able  to  detach  itself  from  the  care  for  interests.  It 


232  THE   MODERN   IDEA  OF  THE    STATE 

was  not  until  the  second  half  of  the  nineteenth  century 
that  the  enormous  volume  of  legislation  resulted  in  a 
re-awakened  consciousness  of  the  importance  of  law. 
These  two  facts  sharpened  men's  insight  into  the  na- 
ture of  the  state  and  caused  it  to  be  recognized  as  a  le- 
gal community. 

Nothing  is  more  indicative  of  the  confusion  in  con- 
temporary political  theory  than  its  teaching  regarding 
the  relation  between  the  state  and  law.  The  state  is  in- 
terpreted at  once  as  a  law-creating  personality  and  as 
subject  to  law.  This  manifest  contradiction  is  insolu- 
ble. The  complex  of  public  interests  must  be  excluded 
from  the  concept  of  the  state  and  the  latter  must  be 
conceived  as  nothing  except  a  legal  community.  If  this 
is  done,  it  will  be  seen  that  what  is  called  the  subjec- 
tion of  the  state  to  law  means  only  the  subjection  of 
public  interests  to  law.  The  state  as  a  legal  community, 
as  a  part  of  mankind  within  which  there  exists  and 
acts  an  original  source  of  legal  values,  is  subject  to  noth- 
ing, for  law  is  by  nature  "sovereign." 

When  the  theory  of  the  state  has  reached  this  point, 
it  is  confronted  with  a  further  problem.  The  concept  of 
the  state  as  a  legal  community  must  be  brought  into 
agreement  with  an  international  law  whose  binding 
force  even  upon  states  must  involve  no  contradiction. 

The  answer  to  this  question  leads  us  finally  to  a  dis- 
cussion of  the  nature  of  international  law. 


CHAPTER  X 

THE    INTERNATIONAL   LEGAL   COMMUNITY 

I.  The  Authority  of  International  Law.  A.  The  Deri- 
vation of  its  Authority  from  the  Authority  of  the  State.  As 
is  now  generally  recognized  both  in  theory  and  prac- 
tice, international  law  has  as  good  a  claim  to  the  name  of 
law  as  that  which  springs  from  the  national  legal  com- 
munity. But  the  explanation  of  the  supremacy  of  law 
in  the  international  field  is  subject  to  the  influence  of 
the  idea  of  sovereignty,  just  as  the  idea  of  the  state  and 
the  binding  force  of  national  law  have  been. 

The  earlier  view  based  the  supremacy  of  law  upon  a 
power  outside  the  law,  and  this  power  was  found  in 
the  state.  The  state  is  the  personification  of  sovereignty 
or  of  the  original  right  to  rule.  So  long  as  this  view  pre- 
vails, the  supremacy  of  international  law  also  must  be 
based  upon  the  authority  of  the  state.  An  independent 
rulership  of  international  law  can  never  be  achieved  by 
this  means.  And  without  independent  supremacy  one 
cannot  speak  of  law.  Writers  sometimes  fail  to  note 
the  contradictions  in  which  they  are  involved.  For  ex- 
ample, De  Louter  x)  maintains  that  international  law 
is  built  up  from  below  by  the  free  will  of  states  and  also 
derives  its  sanction  from  this  will.  But  if  this  were  true, 
international  law  would  immediately  lose  its  validity 

l)  Het  stellig  volkenrechl,  1910,  Vol.  I,  pp.  17  ff. 


234      THE  MODERN  IDEA  OF  THE  STATE 

for  any  state  which  revoked  its  sanction  to  it.  This  the- 
ory can  lead  no  farther  than  to  a  self-limitation.  And 
nothing  is  gained  by  distinguishing  between  a  legal 
competence  which  remains  intact  and  a  competence  to 
act  which  is  limited,  since  this  limitation,  according  to 
the  argument  before  us,  has  proceeded  from  the  state's 
own  will.  Nevertheless,  this  same  author  insists  upon 
the  untenableness  of  the  theory  that  "a  sovereign  state 
is  limited  by  its  own  will  no  longer  than  this  will  con- 
tinues," since  this  "would  undermine  the  foundation 
upon  which  the  structure  of  international  law  rests." 
And  yet  this  is  exactly  the  view  which  logically  follows 
from  his  own  explanation  of  the  validity  of  interna- 
tional law.  International  law  cannot  be  built  upon  the 
unreal  foundation  of  the  sovereignty  of  the  state.  Yet 
this  is  continually  attempted.  Ullmann  1),  for  example, 
recognizes  the  existence  of  an  international  commu- 
nity, perceives  that  this  involves  limitations  upon  states, 
but  remains  ensnared  in  the  idea  of  state  sovereignty 
and  is  therefore  compelled  to  trace  the  force  of  interna- 
tional law  back  to  a  "self -limitation"  of  the  state.  He 
says  that  from  the  juristic  point  of  view  "one  cannot 
properly  speak  of  an  actual  impairment  of  the  state's 
natural  autonomy  and  independence  in  the  field  of  in- 
ternational legal  activity,  since  everything  which  the 
state  undertakes  with  a  view  to  the  protection  and  care 
of  collective  interests  and  obligations  is  rooted  in  the  last 
analysis  precisely  in  its  autonomy  and  independence, 
-  in  its  sovereignty  and  its  free  personality  in  interna- 

*)    Volkerrecht,  1908,  p.  6;  Marquardsen's  Handbuch  des  dffentlichen 
Rechts,  I,  n,  2. 


THE   INTERNATIONAL   LEGAL   COMMUNITY         235 

tional  law.  It  is  by  virtue  of  its  sovereignty  and  its  con- 
sequent capacity  of  limiting  its  own  will  by  autono- 
mous acts  that  there  exists  the  possibility  of  an  or- 
derly relationship  in  the  lives  of  states  and  nations." 

It  is  clear  that  adherence  to  the  idea  of  sovereignty, 
and  to  the  idea  of  the  ultimateness  of  the  authority  pe- 
culiar to  the  state,  leads  this  author  to  surrender  the 
"autonomy"  of  law,  as  does  Jellinek  in  the  field  of  pub- 
lic law.  Thus  they  are  led  to  base  the  binding  force  of 
law  upon  the  very  thing  which  should  be  the  object  of 
control,  namely,  the  will. 

The  difficulty  which  confronts  one  with  reference  to 
international  law  is  generally  summarized  in  the  an- 
tithesis that  national  law  derives  its  binding  force  from 
a  sovereign,  a  ruling  power,  an  authority,  while  the  im- 
perative force  of  international  law  does  not  depend 
upon  any  such  central,  law-creating  power.  Von  Liszt 1) 
expresses  this  contrast  in  the  statement  that  interna- 
tional law  rests  upon  the  principle  of  association,  while 
national  law  rests  upon  the  principle  of  rulership.  This 
principle  of  association,  however,  is  only  a  name  for  the 
point  of  view  represented  by  von  Liszt,  that  in  the  in- 
ternational community  the  will  of  this  community  is 
nothing  more  than  the  collective  will  of  the  members, 
that  is,  of  the  states.  "In  the  international  community, 
the  will  of  the  whole,  whether  determined  expressly  in 
congresses  of  states  or  discoverable  only  in  the  practice 
of  states,  is  nothing  else  than  the  will  of  the  collective  in- 
dividuals." But  this  is  really  only  another  way  of  stat- 
ing the  prevailing  view  that  in  international  law  the 

!)  Das  Volkerrecht,  Ed.  11,  1918,  p    6. 


236  THE   MODERN   IDEA  OF  THE   STATE 

state  is  not  bound,  but  binds  itself.  Therefore,  even 
von  Liszt,  for  the  purpose  of  more  exact  definition, 
adds  to  the  words  quoted  above  the  statement,  "that 
international  arrangements  bind  only  those  states 
which  wish  to  bind  themselves." 

B.  Criticism.  In  fact,  however,  the  difficulty  pre- 
sented above  exists  for  national  law  no  less  than  for  in- 
ternational. In  the  preceding  sections  of  this  work  it  has 
been  shown  repeatedly  that  a  self-supporting  sov- 
ereign authority  is  a  fiction,  and  that  in  consequence 
even  national  law  cannot  derive  its  binding  force  from 
such  a  source.  National  and  international  law  from  this 
point  of  view  stand  in  exactly  the  same  position.  If 
this  is  so,  the  binding  force  of  international  law  also  is 
based  upon  its  spiritual  nature  and  therefore  upon  the 
fact  that  it  is  a  product  of  men's  sense  of  right.  It  rules 
by  virtue  of  this  nature,  compels  men  to  act  according 
to  its  rules,  and  itself  stands  above  the  will.  Interna- 
tional law  is  distinguished  from  national  law  not  in 
respect  to  its  origin  and  foundation,  but  in  respect  to 
the  extent  of  the  community  to  which  its  commands 
apply.  And  the  incomplete  and  less  perfect  character 
of  international  law  does  not  lie  in  the  fact  that  it  rules 
over  "sovereign"  states  and  is  therefore  rooted  in  the 
will  of  these  states.  It  lies  rather  in  the  defective  organ- 
ization of  the  sense  of  right  which  tends  to  regulate 
the  community  of  civilized  nations.  Both  the  making  of 
international  law  and  its  administration  and  enforce- 
ment by  means  of  an  adequate  judiciary  remain  still 
in  the  most  elementary  stages  of  organization  while  all 
this  has  already  been  developed  to  systematic  com- 


THE    INTERNATIONAL   LEGAL   COMMUNITY         237 

pleteness  for  national  law.  The  satisfaction  of  this  need 
for  an  organization  of  international  law  is  a  problem 
which  is  now  attracting  the  widest  attention.  So  far  as 
the  organization  of  the  international  community  is  con- 
cerned, we  are  still  living  in  the  Middle  Ages,  when  the 
political  relation  between  citizens  was  as  fragmentary 
and  incomplete  as  that  between  nations  at  the  present 
time.  Legislation,  judicature,  and  the  administration 
of  law  were  then  as  defectively  organized  throughout 
as  is  now  the  case  in  the  international  community.  But 
we  have  reason  to  expect  that  the  international  organi- 
zation will  be  established  somewhat  more  quickly  and 
with  less  human  sacrifice  than  was  needed  to  bring  the 
political  order  of  the  civilized  world  to  its  present  level. 
As  a  result  of  the  increasing  contact  between  members 
of  all  nations,  the  operation  of  the  sense  of  right  which 
must  produce  this  supernational  organization  has  be- 
come far  more  powerful  and  more  inclusive  than  in 
earlier  times.  The  results  of  this  fact  appear  very  clearly 
in  the  numerous  international  legal  arrangements 
which  have  been  established  in  the  last  half-century. 
Consequently,  even  though  one  cannot  as  yet  speak  of 
a  legal  community  including  all  states,  still  the  exist- 
ing legal  communities,  or  states,  no  longer  have  the 
self-sufficiency  which  current  political  science  repre- 
sents them  as  having  in  theory.  The  idea  of  the  state  is 
beginning  to  overstep  the  limits  of  the  national  state 
and  to  realize  itself  fragment arily  in  larger  legal  com- 
munities, which  offer  a  new  and  higher  legal  value  to 
human  interests  than  could  grow  out  of  the  smaller  le- 
gal communities.  We  have  entered,  therefore,  upon 


238  THE   MODERN   IDEA  OF  THE   STATE 

the  way  which  leads  to  the  formation  of  greater  states. 
In  so  far  as  law-making  by  these  greater  communities 
actually  takes  place,  the  legal  activity  of  the  existing 
states  must  contract.  The  ultimate  source  of  legal  val- 
ues is  transferred  to  these  greater  communities,  and 
the  present  national  communities  lose  their  character 
as  states  to  continue  their  existence  with  a  more  or 
less  derivative  autonomy.  Toward  this  process,  which 
is  taking  place  before  our  eyes,  our  attention  must  be 
repeatedly  directed  in  the  following  pages. 

II.  The  Content  of  International  Law.  A.  The  Signif- 
icance of  International  Law  for  the  State  as  a  Legal 
Community.  Among  the  oldest  interests  whose  legal 
value  is  rooted  in  international  law,  there  stands  out 
the  interest  which  a  nation  has  of  determining  its  pub- 
lic order  according  to  its  own  legal  standards.  To  de- 
fine it  otherwise,  it  is  the  interest  which  a  nation  has 
in  creating  a  state.  The  value  of  this  interest  is  no  more 
unconditional  than  that  of  any  other  interest;  and 
hence  it  falls  to  international  law  to  determine  its  legal 
value.  In  order  that  this  may  be  done,  however,  it  must 
be  made  clear  to  the  outside  world  that  the  nation 
really  has  a  right  to  be  a  state  or  independent  legal 
community.  This  is  shown  by  the  existence  of  an  organ- 
ization proceeding  from  its  own  national  law,  either 
written  or  unwritten,  competent  to  enforce  this  law. 
In  order  that  the  real  importance  of  this  national  in- 
terest may  stand  above  question,  there  must  exist  a 
legal  order  providing  for  legislation,  for  the  adminis- 
tration of  justice,  and  for  the  machinery  needed  to 


THE   INTERNATIONAL   LEGAL   COMMUNITY         239 

enforce  the  law.  It  is  only  after  the  interest  of  a  nation 
in  leading  its  own  legal  life  has  been  sanctioned  by  na- 
tional law  that  this  interest  can  receive  legal  sanction 
from  the  international  community,  thus  determining 
the  right  of  the  nation  to  form  a  state.  Sometimes, 
however,  the  character  of  a  state  is  conferred  upon  a 
nation  irrespective  of  its  possessing  its  own  organiza- 
tion as  a  state  and  an  organization  is  set  up  by  means 
of  international  law,  as  was  done  in  the  case  of  Albania. 

A  nation's  character  as  a  state,  therefore,  is  rooted 
in  a  law  which  is  international  in  scope.  A  nation  has  no 
natural  right  to  lead  an  independent  legal  life.  If  the 
legal  value  of  the  interests  of  the  international  commu- 
nity is  not  furthered  by  such  an  independent  legal  life, 
the  claims  of  a  nation  to  regulate  its  own  communal 
life  according  to  its  own  legal  standards  are  invalid. 
And  the  sense  of  right  of  the  international  community 
expresses  itself  with  reference  to  these  claims  when  a 
nation  is  recognized  in  any  manner  as  a  state  by  other 
states,  though  it  is  not  necessary  that  this  recognition 
shall  proceed  from  all  states.  In  this  case  also  there 
must  be  a  single  standard  if  the  law  is  to  be  the  stand- 
ard of  a  community.  This  can  usually  be  attained 
only  by  allowing  a  majority  to  decide. 

If  the  right  of  a  nation  to  be  a  state  is  rooted  in  in- 
ternational law,  it  is  self-evident  that  international 
law  may  determine  also  how  far  this  right  extends ;  but 
international  law  has  no  further  significance  for  the 
state  as  a  legal  community.  It  can  only  impose  limita- 
tions upon  a  nation's  legal  activity.  The  state  as  a  legal 
community  cannot  be  subjected  to  any  sort  of  obliga- 


240  THE   MODERN    IDEA  OF  THE   STATE 

tions,  since  such  obligations  would  amount  to  a  de- 
mand that  it  create  an  order  according  to  a  different 
legal  standard  from  that  which  belongs  to  it  as  a 
legal  community;  this  would  be  equivalent  to  the 
nullification  of  its  character  as  a  state.  To  be  sure,  an 
international  regulation  can  obligate  the  legislature  or 
the  government  to  elaborate  this  regulation  by  more 
detailed  prescriptions,  but  in  this  case  these  bodies 
function  not  as  organs  of  the  state  as  a  legal  commu- 
nity, but  as  organs  of  the  international  legal  commu- 
nity. The  legal  activity  of  a  state  manifests  itself  exclu- 
sively in  setting  up  special,  ultimate  legal  standards 
which  distinguish  one  state  from  another.  Freedom  and 
independence  in  law-making,  therefore,  are  indefeasi- 
bly  connected  with  the  state.  Consequently  interna- 
tional law  can  do  nothing  but  limit  the  state  in  respect 
to  the  interests  for  which  it  is  permitted  to  lay  down 
rules  in  accordance  with  its  own  legal  standard.  Any 
sort  of  interests  may  be  withdrawn  from  its  legal  regu- 
lation, but  the  legal  standards  which  are  applied  must 
remain  uncurtailed,  if  its  character  as  a  state  is  not  to 
be  lost.  Whenever  any  interest  has  been  recognized  as 
having  legal  value  by  the  international  legal  commu- 
nity, therefore,  the  competence  of  the  state  as  a  legal 
community  undergoes  a  limitation  with  reference  to 
the  valuation  of  such  interests. 

B.  The  Subjects  of  International  Law.  If,  however, 
international  law  lays  no  obligations  upon  states,  who 
then  is  subject  to  its  obligations?  This  depends  entirely 
upon  the  nature  of  the  interests  which  have  been  regu- 
lated by  international  law.  If  they  are  special  interests 


THE    INTERNATIONAL   LEGAL   COMMUNITY         241 

of  citizens,  as  is  usually  the  case  in  private  interna- 
tional law,  the  subjects  are  individuals.  If  they  are  public 
interests,  then  those  who  are  intrusted  by  constitu- 
tional law  with  the  care  of  these  interests  are  the  sub- 
jects;  for  example,  a  judge  who  by  virtue  of  a  treaty 
has  to  validate  the  subpoena  of  a  foreign  court  or  to 
render  judgment  in  accordance  with  the  rules  of  inter- 
national law;  or  a  government  which  is  called  upon  to 
manage  postal,  telegraph,  and  telephone  services  in  ac- 
cordance with  international  legal  agreements ;  or  a  leg- 
islature which  must  appropriate  money  for  the  execu- 
tion of  treaties ;  or  the  state  postal  savings-bank,  when 
by  virtue  of  a  treaty  with  Belgium  it  has  to  register 
transfers  and  assignments  in  the  Dutch-Belgian  sav- 
ings-bank books;  or  the  police,  when  they  have  to 
carry  out  any  sort  of  obligations  because  of  treaties 
relating  to  domicile  and  extradition.  All  these  obliga- 
tions, however,  are  now  commonly  regarded  as  obli- 
gations of  the  state.  It  has  already  been  shown  that 
this  cannot  mean  the  state  as  a  legal  community.  But 
does  it  have  a  better  sense,  if  the  state  as  a  community 
of  interests  is  regarded  as  the  subject  of  such  obliga- 
tions ?  This  can  scarcely  be  maintained,  since  the  state 
as  a  community  of  interests  does  not  constitute  a  uni- 
ty. A  community  of  interests  forms  a  unity  because  of 
its  devotion  to  specific  interests  and  the  achievment  of 
specific  purposes.  But  what  interests  are  cared  for  by 
the  community  which  is  called  the  state?  We  have 
already  considered  this  question.  No  one  can  say  that 
care  for  this  or  that  interest  is  an  essential  element  of 
the  state.  There  have  been  states  without  a  judiciary, 

The  modern  idea  of  the  State.  16 


242  THE   MODERN   IDEA  OF  THE   STATE 

without  legislation,  without  a  postal  service,  an  admin- 
istration of  mines,  a  ministry  of  education,  or  an  ad- 
ministration of  highways.  That  these  interests  are  pro- 
vided for  nowadays  results  from  their  having  been 
recognized  as  having  a  legal  value.  But  if  a  conclusion 
as  to  what  are  state  interests  is  to  be  based  upon  this 
recognition  of  legal  value,  it  must  follow  that  all  in- 
terests which  enjoy  legal  protection  are  state  interests. 
There  would  be  no  objection  to  this  as  a  matter  of 
terminology,  if  it  had  any  bearing  upon  the  nature  of 
the  state.  But  this  is  not  the  case,  for  there  is  no  limit 
to  the  interests  which  may  come  under  consideration 
as  having  legal  value  and  the  question  cannot  be  set- 
tled a  priori.  New^ interests  appear  within  the  field  of 
law ;  old  interests,  such  as  religious  ones,  are  removed 
from  it.  There  are  no  interests  which  must  be  recog- 
nized invariably  as  state  interests;  and  therefore  the 
distinguishing  characteristic  of  the  state,  in  contrast  to 
other  communities,  cannot  be  found  in  its  care  for  any 
sort  of  interests.  They  come  to  be  state  interests  only 
when  a  legal  value  is  accorded  them;  the  state  itself, 
therefore,  exists  only  where  this  legal  value  flows  from 
an  inherent  and  independent  source.  The  specific  pur- 
pose which  is  contained  in  the  idea  of  the  state  and 
which  brings  men  together  into  an  association  different 
from  all  other  communities  is  the  right  of  a  nation  to 
realize  its  own  legal  ideal. 

It  is  meaningless,  therefore,  to  call  the  state,  con- 
ceived as  a  community  of  interests,  the  subject  of  in- 
ternational law,  for  in  this  sense  the  word  "state"  sig- 
nifies merely  a  complex  of  interests  which  diminishes 


THE    INTERNATIONAL   LEGAL   COMMUNITY         243 

or  increases  according  as  fewer  or  more  interests  are 
endowed  with  a  legal  value.  Those  individuals  are  sub- 
jects of  international  law  to  whom  powers  and  obliga- 
tions attach  as  defenders  of  the  interests  with  which 
that  law  is  concerned.  It  is  not  merely  juristically  in- 
accurate to  consider  treaty  rights  and  treaty  obliga- 
tions as  rights  and  obligations  of  the  state ;  it  also  con- 
fuses the  facts  of  legal  relation  thus  to  make  fictions 
the  possessors  of  rights.  It  may  perhaps  be  defensible, 
for  the  sake  of  brevity,  to  follow  common  usage  and 
to  call  the  state,  as  a  community  of  interests,  the  sub- 
ject of  international  law,  and  this  is  in  fact  the  case. 
But  in  the  interests  of  accuracy,  this  must  be  under- 
stood as  an  indirect  way  of  referring  to  the  men  who 
have  to  obey  the  rules  of  international  law.  But  it  is  in 
fact  not  so  understood.  When  the  Dutch  "state"  is 
said  to  be  bound  by  treaties,  this  tells  us  nothing  about 
the  persons  who  in  reality  are  subject  to  these  obliga- 
tions. The  persons  referred  to  may  be  the  government, 
the  judges,  the  state's  attorney,  the  legislature,  the 
mayor,  a  board  of  dike  commissioners,  or  a  private 
person.  Which  of  these  is  subject  to  the  commands  of 
international  law  depends  upon  what  interests  have 
come  to  have  their  values  assessed  by  this  law,  and 
what  persons  have  been  designated  by  constitutional 
law  (national  or  international)  to  care  for  these  in- 
terests. 

How  then  does  it  happen  that  according  to  the  pre- 
vailing theory  states  are  looked  upon  as  subjects  of  in- 
ternational law,  and  indeed  that  the  specific  nature  of 
international  law  is  deemed  to  consist  in  the  fact  that 


244  THE    MODERN   IDEA  OF  THE    STATE 

it  regulates  the  reciprocal  legal  relations  of  a  special 
kind  of  subjects,  namely  states? 

This  question  may  be  answered  by  referring  to  the 
conception  of  the  state  which  has  repeatedly  been 
shown  to  be  inaccurate  in  the  preceding  pages.  The 
essence  of  this  conception  is  the  subjection  of  a  part  of 
humanity  to  a  sovereign,  or  according  to  German  ter- 
minology to  a  person  endowed  with  an  ultimate  right 
to  rule.  Hence  it  recognizes  a  natural  authority  over 
men  existing  outside  the  law.  So  long  as  this  view  is 
maintained,  international  law  can  affect  individuals 
only  by  the  interposition  of  this  sovereign,  or  the  state, 
conceived  as  a  ruling  subject.  "Individuals  come  into 
consideration  only  as  objects  of  rulership  and  protec- 
tion." l)  The  commands  of  international  law  must  be 
directed  to  the  sovereign,  or  to  the  state,  and  therefore 
only  states  are  to  be  regarded  as  its  subjects. 

Since  the  citizens  are  not  directly  subject  to  inter- 
national law,  this  argument  obviously  leads  to  the  con- 
clusion that  with  every  extension  of  international  law 
the  national  sovereign  must  re-enact  the  new  provi- 
sions. Citizens  are  subject  to  the  commands  of  no  one 
except  the  national  sovereign.  What  their  sovereign 
may  agree  upon  with  other  sovereigns  in  no  wise  con- 
cerns them.  They  have  to  regulate  their  conduct  only 
with  reference  to  what  their  natural  lord  and  master 
is  pleased  to  command.  And  thus,  under  the  stress  of 
this  theory,  it  has  become  the  practice  in  some  coun- 
tries that  a  treaty  imposing  obligations  upon  the  custo- 
dians of  public  or  private  interests  must  be  re-enacted 

l)  Heilborn,  Handbuch  des  Volkerrechts,  Vol.  I,  p.  95. 


THE    INTERNATIONAL   LEGAL   COMMUNITY         245 

in  the  form  of  a  statute  before  they  are  obliged  to 
observe  it. 

This  perverted  practice  and  artificial  theory  col- 
lapse as  soon  as  one  perceives  the  fallacy  of  a  political 
doctrine  which  still  adheres  to  an  absolutist  concep- 
tion of  the  state,  though  it  makes  a  distinction  in  terms 
by  substituting  a  legal  person  for  a  personal  sovereign 
as  the  natural  ruler.  The  currency  which  the  modern 
idea  of  the  state  has  already  secured  makes  it  daily 
more  evident  that,  as  there  is  no  authority  within  the 
limits  of  a  state  except  that  of  the  law,  so  the  same 
authority  must  be  recognized  as  a  regulating  power 
outside  it,  in  communities  which  include  several  states. 
Law  rules  by  its  own  force  in  the  international  com- 
munity exactly  as  it  does  within  the  state.  This  means 
that  legal  values  arising  from  the  international  com- 
munity impose  their  obligations  directly  upon  every 
individual  who  has  to  care  for  interests  the  legal  value 
of  which  is  fixed  in  international  law.  There  is  no  inter- 
position of  a  hypothetical  state  authority.  The  name, 
International  Law,  is  really  a  misnomer;  the  name  is 
suitable  only  to  the  theory  which  regards  states  as 
subjects  of  this  law  and  which  consequently  regards  it 
as  a  law  between  states.  It  would  be  better,  therefore, 
to  speak  of  a  supernational  law,  since  this  expresses  the 
idea  that  we  are  dealing  with  a  law  which  regulates 
a  community  of  men  embracing  several  states  and 
which  possesses  a  correspondingly  higher  validity  than 
that  attaching  to  national  law. 

C.  The  Connection  between  National  and  International 
Law.  The  content  of  international  law  is  just  as  little 


246  THE   MODERN   IDEA  OF  THE   STATE 

capable  of  being  determined  a  priori  as  that  of  national 
law.  All  human  interests  might  be  regulated  by  the 
supernational  law,  and  we  are  witnesses  to  the  fact 
that  an  increasing  number  of  interests  are  continually 
being  committed  to  its  protection.  Consequently  we 
might  divide  this  law  into  private  law,  criminal  law, 
the  law  of  procedure,  administrative,  and  constitu- 
tional law.  What  is  usually  called  the  law  of  nations 
(Volkerrecht)  is  really  international  constitutional  law. 
But  this  term  no  longer  corresponds  to  the  actual  mean- 
ing of  the  law  to  which  it  relates,  since  it  suggests  legal 
relationships  between  states,  while  in  fact,  interna- 
tional law  is  a  complex  of  obligations  to  be  discharged 
by  individuals.  As  a  result  of  these  obligations  organs 
are  called  into  existence  for  certain  public  interests 
and  their  activity  is  regulated;  or  it  may  be  that  the 
competence  of  organs  already  existing,  arising  out  of 
national  law,  is  defined.  All  this,  however,  belongs  to 
constitutional  law  in  the  sense  in  which  that  term  is 
properly  used.  Thus  there  are  already  supernational 
tribunals ;  for  example,  the  Central  Commission  for  the 
Navigation  of  the  Rhine,  which  includes  a  Court  of  Arbi- 
tration whose  organization  forms  the  beginning  of  a  su- 
pernational constitutional  law.  But  for  the  most  part  the 
supernational  law  makes  use  of  national  organs,  the 
legislature,  the  government,  judges,  the  police,  etc., 
and  hence  it  merely  brings  about  a  change  in  the  com- 
petence of  these  organs  as  regulated  by  national  law. 
Since  the  law  of  nations  has  now  developed  into  a  su- 
pernational constitutional  law,  it  would  be  better  in  the 
future  to  use  this  term,  thus  carrying  out  in  termi- 


THE   INTERNATIONAL   LEGAL   COMMUNITY         247 

nology  the  parallelism  between  national  and  superna- 
tional  law. 

It  is  becoming  less  and  less  sufficient  to  confine  our 
attention  to  the  national  law  in  order  to  secure  a  knowl- 
edge of  the  law  under  which  a  nation  lives.  Every 
branch  of  the  law  is  extending  itself  more  and  more 
into  the  field  of  supernational  law,  so  that  powers  and 
obligations  must  be  derived  in  turn  now  from  the  one, 
now  from  the  other.  The  one  law  is  distinguished  from 
the  other  neither  in  respect  to  its  binding  force,  nor  its 
content,  nor  its  subjects.  The  difference  between  the 
two  systems  of  law  lies  only  in  the  fact  that  superna- 
tional law  is  effective  for  a  larger  community  and  there- 
fore the  evaluations  springing  from  it  possess  a  higher 
legal  worth.  Just  so  long  as  political  theory  clings  to 
the  idea  of  sovereignty  and  therefore  holds  that  the 
state  consists  in  the  subjection  of  the  nation  to  a  sov- 
ereign lying  outside  the  law,  the  co-ordination  of 
supernational  law  with  national  law  cannot  be  effec- 
tive. It  follows  from  the  idea  of  sovereignty  that  the 
validity  of  supernational  law  is  left  without  support, 
for  there  is  no  sovereignty  in  the  international  commu- 
nity. It  follows  moreover  that  the  content  of  interna- 
tional law  depends  upon  what  the  state  has  drawn  into 
the  circle  of  its  own  functions,  for  there  is  no  direct  con- 
nection between  the  international  community  and  the 
interests  to  be  evaluated,  but  these  interests  can  be  pro- 
vided for  only  indirectly  through  the  state.  And  finally, 
only  states  can  be  subjects  of  international  law,  since  the 
international  community  can  never  be  anything  except 
an  association  of  sovereigns.  But  positive  supernational 


248  THE   MODERN   IDEA  OF  THE   STATE 

law  directly  contradicts  every  one  of  these  three  con- 
clusions which  follow  from  the  idea  of  sovereignty. 
Consequently,  wherever  in  the  literature  the  discus- 
sion of  any  part  of  international  law  requires  a  theoret- 
ical treatment  of  its  principles,  the  result  is  either  a 
thorough-going  contradiction  or  a  mere  logical  con- 
struction based  on  arbitrary  and  fictitious  ideas.  Inter- 
national law  can  be  elevated  to  the  rank  of  a  real 
science  only  when  the  modern  idea  of  the  state  is  fully 
and  clearly  understood  and  when,  as  a  result,  the  idea 
of  sovereignty  is  discarded  and  all  authority  is  traced 
back  to  the  authority  of  law.  In  this  way,  international 
law  has,  or  can  have,  the  same  foundation,  the  same 
content,  and  the  same  subjects  as  national  law. 

III.  The  Creation  of  International  Law.  A.  Organs. 
International  law,  like  all  other  law,  is  a  product  of  the 
operation  of  men's  sense  of  right,  but  it  has  had  hith- 
erto a  much  narrower  foundation  than  national  law, 
the  validity  of  which,  as  a  result  of  the  representative 
system,  is  rooted  in  the  sense  of  right  of  the  whole  pop- 
ulation which  is  competent  to  make  law.  Interna- 
tional law  still  rests  in  great  part  upon  the  legal  convic- 
tions of  those  who  have  to  care  for  the  interests  with 
which  international  law  is  concerned.  In  so  far  as  in- 
ternational law  is  related  to  private  law,  the  legal  con- 
victions of  particular  persons  are  taken  into  consider- 
ation; but  since  these  convictions  are  not  organized, 
they  exercise  only  a  slight  influence  upon  the  shaping 
of  this  law.  For  public  law,  that  is  to  say  for  the  law 
which  embodies  the  legal  rules  of  public  interests,  the 


THE    INTERNATIONAL   LEGAL   COMMUNITY         249 

legal  conceptions  of  those  persons  who  are  concerned 
with  these  interests,  namely  organs  of  administration, 
might  be  able  collectively  to  control  the  making  of  law 
in  their  own  fields.  But  international  constitutional  law 
knows  no  such  organization.  The  judicial  power,  the 
postal,  the  telegraph,  and  the  telephone  officials,  the 
savings-banks  and  state  insurance  commissions  of  the 
different  countries  are  for  the  most  part  not  in  direct  com- 
munication, and  indeed  according  to  international  law 
are  not  competent  to  conclude  treaties  concerning  the 
interests  confided  to  their  care.  So  far,  however,  as  they 
do  have  a  common  concern  for  matters  of  any  sort,  a 
practice  occasionally  develops  which  may  be  regarded  as 
a  part  of  international  law.  As  a  rule  only  the  central  or- 
gan, the  government,  is  recognized  as  alegislative  organ. 
According  to  international  constitutional  law  it  alone 
is  competent,  in  co-operation  with  the  governments 
of  other  states,  to  make  international  law  both  for 
those  interests  entrusted  to  its  care  and  for  all  inter- 
ests generally.  As  yet  the  representative  body  has  but 
a  small  share  in  the  making  of  international  law.  Its 
co-operation  is  required  only  in  certain  kinds  of  trea- 
ties, and  then  exclusively  in  the  form  of  an  approval 
which,  moreover,  is  given  only  after  the  conclusion  of 
the  treaty  by  the  respective  governments ;  thus  it  pos- 
sesses merely  a  right  of  veto. 

In  the  making  of  international  law,  therefore,  it  is 
chiefly  the  legal  conceptions  of  the  governments  which 
are  decisive.  But  it  is  clear  that  these  are  not  entirely 
unconnected  with  the  national  sense  of  right.  The  in- 
fluence of  this  sense  of  right,  however,  aside  from  the 


250  THE   MODERN   IDEA  OF  THE    STATE 

approval  of  treaties,  is  unorganized,  and  consequently 
can  scarcely  be  effective  in  the  ordinary  intercourse  be- 
tween states.  Only  when  the  vital  interests  of  the 
nation  are  at  stake  does  the  national  sense  of  right 
exert  a  powerful  influence  and  when  this  happens  the 
government  is  frequently  subject  to  pressure  from  con- 
victions and  conceptions  which  have  been  formed  with- 
out a  complete  knowledge  of  the  relationships.  Conse- 
quently one  of  the  greatest  defects  in  the  making  of 
international  law  lies  precisely  in  the  lack  of  an  organi- 
zation in  the  different  states  such  as  would  insure  the 
existence  of  a  popular  organ  which,  like  the  govern- 
ment, would  be  in  constant  touch  with  international 
interests.  This  might  be  either  a  special  organ  or  the 
one  already  existing  for  law-making  within  the  state. 
The  sense  of  right  represented  by  this  organ,  being 
supported  by  a  knowledge  of  the  interests  concerned, 
could  make  itself  effective  in  the  field  of  international 
law.  Such  an  organization  is  the  first  object  to  be 
striven  for  in  the  immediate  future  and  pacifism  ought 
to  devote  all  its  energy  to  this  end.  With  reference  to 
the  vital  interests  of  a  nation  which  are  at  stake  in 
decisions  concerning  war  and  peace,  the  national  sense 
of  right  ought  to  have  the  last  word,  just  as  in  most 
states  this  sense  is  already  decisive  with  reference  to 
national  legal  interests.  But  in  this  case  also  the  legal 
conviction  of  a  nation  can  be  fruitful  only  when  it 
actually  knows  the  existing  relationships,  the  interests 
which  are  opposed  to  one  another.  And  hence  the  very 
first  thing  to  which  we  should  turn  our  attention  is  the 
breaking  of  the  government's  monopoly  of  knowledge 


THE   INTERNATIONAL  LEGAL  COMMUNITY        251 

regarding  international  relationships,  particularly  those 
of  an  international  legal  nature.  Such  provisions  as 
those  in  our  Constitution  which  reserve  to  the  govern- 
ment the  right  to  decide  whether  the  interest  of  the 
state  permits  the  communication  of  treaties  to  the 
States  General,  and  which  even  in  case  of  a  declara- 
tion of  war  make  it  possible  that  the  States  General 
may  receive  only  such  communications  as  the  govern- 
ment believes  compatible  with  the  interest  of  the  state, 
must  no  longer  be  tolerated.  Such  provisions  design- 
edly keep  the  people's  representatives  in  ignorance  of 
matters  which  may  relate  to  the  highest  interests  of 
the  fatherland.  An  entirely  different  spirit  ought  to 
inspire  the  constitutional  law  of  states  in  this  matter. 
With  reference  to  their  international  relations  also  it 
should  be  not  the  sudden  blaze  of  an  uninformed  sense 
of  right,  but  the  enlightened  conviction  of  the  nation 
based  on  a  knowledge  of  the  matter  in  all  its  aspects, 
which  should  give  direction  to  the  conduct  of  the  gov- 
ernment. 

How  does  the  formation  of  international  law  take 
place  ? 

B.  Customary  Law.  In  the  first  place,  we  must  take 
account  of  customary  law,  whose  validity  depends 
upon  the  legal  convictions  of  governments  regarding 
their  conduct  toward  one  another,  or  regarding  the 
conduct  of  states  toward  other  states.  The  supremacy 
of  customary  law,  its  objective  validity,  depends  upon 
the  force  of  these  convictions,  just  as  in  the  case  of 
national  customary  law.  The  authority  of  a  rule  of 
customary  law  increases  in  proportion  as  it  is  more  gen- 


252  THE   MODERN   IDEA  OF  THE   STATE 

erally  felt  to  be  law.  At  the  basis  of  customary  law, 
therefore,  there  lies  a  community  of  legal  conviction, 
a  common  sense  of  right,  with  reference  to  certain  in- 
terests and  this  manifests  itself  in  fixed  modes  of  con- 
duct. Those  who  place  themselves  outside  this  com- 
munity undergo  the  corresponding  criticism  which 
their  conduct  calls  forth  in  others.  If  this  criticism  fails 
to  materialize,  it  is  a  sure  indication  that  the  customary 
law  has  lost  its  validity.  The  more  powerful  and  the 
more  general  it  is,  the  greater  is  the  validity  of  the 
customary  law.  Nevertheless  customary  law  is  binding 
also  upon  those  who  place  themselves  outside  the  legal 
community  from  which  it  springs.  This  follows  from 
the  fact  already  established,  that  the  need  for  unity  of 
law  requires  that  the  majority  shall  rule. 

In  contrast  to  national  law,  therefore,  the  existence 
of  international  law  must  be  attested  by  the  behavior 
of  those  who  belong  to  the  legal  community;  an  organ, 
the  judge,  who  decides  concerning  the  existence  of  a 
customary  law,  is  beginning  to  develop  sporadically. 
When  a  general  court  of  arbitration,  competent  to  deal 
with  all  legal  conflicts  between  certain  countries,  is 
provided  for  by  treaty,  the  validity  of  customary  law 
gains  a  firmer  basis  than  when  the  existence  of  custom- 
ary law  is  settled  merely  by  the  accidental  manifes- 
tations of  conviction  in  other  states. 

C.  Treaty-law.  The  second  point  to  consider  is  the 
making  of  law  by  means  of  treaties.  Every  treaty  estab- 
lishes between  the  states  which  are  parties  to  it  a 
community  of  legal  conviction  with  reference  to  cer- 
tain interests.  In  this  respect  there  is  no  difference 


THE    INTERNATIONAL   LEGAL   COMMUNITY         253 

between  the  basis  of  law  created  by  treaty  and  that 
which  springs  from  custom.  In  both  a  legal  community 
is  established;  but  in  the  case  of  customary  law,  its 
existence  must  be  inferred  from  the  conduct  of  the 
states,  while  in  the  case  of  treaties  its  existence  is 
proved  by  rules  expressly  laid  down  by  the  contracting 
parties  to  govern  their  future  conduct.  Every  treaty, 
therefore,  embodies  a  piece  of  international  law  which, 
like  all  other  law,  owes  its  validity  to  the  community 
of  legal  conviction  which  has  settled  the  content  of  its 
obligations.  As  a  rule,  the  law  created  by  a  treaty  does 
not  extend  further  than  to  the  members  of  this  com- 
munity, i.e.,  to  the  contracting  parties.  We  say,  "as  a 
rule,"  for  this  is  true  only  when  the  legislation  relates 
exclusively  to  the  special  interests  of  the  contracting 
states.  If,  for  example,  Holland  concludes  a  treaty 
with  Germany  for  maintaining  beacons  along  the  River 
Ems  or  for  equipping  it  with  floating  or  standing  marks 
of  navigation,  the  obligations  created  by  the  treaty 
are  limited  to  these  two  countries.  If,  however,  the 
object  of  the  treaty  relates  to  more  general  interests, 
if  several  states  establish  rules  regarding  neutrality, 
extradition,  marriage,  divorce,  guardianship,  the  cir- 
culation of  bills  of  exchange,  etc.,  then  certainly  the 
citizens  of  these  states  and  their  organs  of  public  in- 
terests, and  especially  their  governments,  are  primarily 
bound  to  observe  these  rules.  But  since  the  interests 
for  which  the  international  law  in  these  cases  has  been 
established  are  not  exclusively  interests  of  the  con- 
tracting parties,  these  treaties  constitute  a  piece  of  in- 
ternational law  which,  in  proportion  to  the  number  of 


254  THE   MODERN    IDEA   OF  THE   STATE 

states  which  have  had  a  share  in  it,  bears  witness  to  a 
sense  of  right  so  widely  extended  that  other  states  also 
will  feel  themselves  more  or  less  bound  by  it.  Conse- 
quently it  cannot  be  maintained  that  in  international 
law  a  treaty  is  binding  only  upon  the  parties  that  have 
consented  to  it.  A  piece  of  international  law  estab- 
lished by  a  considerable  number  of  states  operates  in 
exactly  the  same  manner  as  if  a  customary  law  had 
grown  up  with  reference  to  the  matter  regulated  by  it. 
And  as  customary  law  binds  those  also  who  stand  out- 
side the  community  from  which  it  springs,  so  it  re- 
peatedly happens  that  rules  regarding  certain  general 
interests  which  have  been  reached  by  a  community  of 
states  formed  for  a  particular  purpose  are  binding  upon 
other  states  also  which  had  no  share  in  concluding  the 
treaty.  No  one  will  maintain  that  the  provisions  of  the 
Treaty  of  Washington,  of  the  Treaty  of  Paris  of  1856, 
and  the  like,  are  valid  only  in  respect  to  the  interests 
of  the  contracting  parties.  On  the  contrary  these  pro- 
visions have  gained  universal  significance,  whether 
other  states  have  given  their  adherence  to  them  or  not. 
Such  treaties  have  awakened  a  sense  of  right  in  all 
civilized  states,  and  have  formed  the  basis  for  a  writ- 
ten customary  law. 

What  we  have  observed  above  with  reference  to 
customary  law  is  true  also  of  treaty-law,  namely,  that 
its  observance  in  most  cases  is  guaranteed  only  by  the 
convictions  of  those  who  are  included  in  the  legal  com- 
munity. At  first  glance  this  fact  would  seem  to  indicate 
that  a  treaty  is  a  less  important  source  of  interna- 
tional law  than  customary  law,  since  the  latter  is 


THE    INTERNATIONAL   LEGAL   COMMUNITY         255 

supported  by  a  sense  of  right  which  reveals  itself  in 
the  conduct  of  many  states.  Consequently  its  non-ob- 
servance by  a  single  state  may  be  expected  not  only  to 
call  forth  a  reaction  but  a  reaction  on  the  part  of  many 
states.  In  the  case  of  treaty-law,  on  the  other  hand,  we 
often  have  to  do  with  an  international  law  which  is 
binding  upon  only  two  or  three  states  and  when  one 
of  these  states  refuses  to  subject  itself  to  the  estab- 
lished law,  the  reaction  against  its  non-observance  has 
only  slight  significance.  We  may  set  against  this,  how- 
ever, the  fact  that  a  unilateral  breach  of  a  treaty  is 
an  act  so  injurious  to  international  intercourse  that 
pacta  sunt  servanda  is  itself  considered  a  rule  of  custom- 
ary law.  Consequently  the  binding  force  of  treaties 
in  general  springs  not  only  from  the  fact  that  the  con- 
tent of  the  treaty  is  supported  by  a  sense  of  right  com- 
mon to  the  contracting  governments,  It  is  rooted  also 
in  the  sense  of  right  of  all  civilized  nations,  in  so  far 
as  the  rule  that  treaties  must  be  observed  stands  as  a 
customary  law  of  all  civilized  states.  Hence  the  breach 
of  a  treaty  by  one  party  is  not  merely  a  violation  of  the 
international  law  created  by  treaty  but  in  addition  is 
a  violation  of  the  rule  of  customary  international  law 
that  a  treaty  is  continuously  binding  upon  the  parties 
which  have  entered  into  it. 

International  law,  however,  no  more  recognizes  eter- 
nally binding  obligations  than  does  national  law.  Pacta 
sunt  servanda  is  true  only  within  limits.  It  is  a  postulate 
which  doubtless  possesses  great  value  for  civilization 
but  which,  like  all  other  such  values,  can  claim  only  a 
relative  validity  so  far  as  law  is  concerned.  Conse- 


256  THE   MODERN    IDEA  OF  THE   STATE 

quently  when  the  legal  community  which  has  called 
a  treaty  into  existence  disappears,  the  rule  of  custom- 
ary law  that  treaties  must  be  observed  will  not  keep 
it  in  force  forever.  This  point,  which  concerns  gener- 
ally the  internal  decay  of  international  law,  will  be 
more  thoroughly  treated  in  a  later  section.  l) 

D.  Contractual  and  Declaratory  Treaties.  In  the  pre- 
ceding argument  no  distinction  has  been  made  be- 
tween treaties.  It  has  been  said  merely  that  all  are  a 
source  of  international  law,  at  least  for  the  community 
of  states  which  has  concluded  them.  Thus  a  distinc- 
tion was  neglected  which  is  frequently  made,  viz.,  that 
between  a  treaty  in  the  sense  of  a  contract,  which  cre- 
ates an  obligation  between  the  parties,  and  a  treaty  in 
which  the  harmony  of  wills  is  regarded  as  a  declaration 
or  agreement  to  establish  rules  of  international  law. 
This  distinction,  however,  has  no  foundation,  since 
rules  of  international  law  are  established  likewise  by 
a  treaty  in  the  first  sense. 

Even  juristically  there  is  no  opposition  between  the 
two.  It  is  held  that  in  a  treaty  which  creates  obligations 
the  parties  seek  different  ends ;  one  wants  money,  the 
other  goods ;  opposing  interests  are  thus  to  be  satisfied. 
In  law-making  treaties,  on  the  other  hand,  the  interests 
are  common  or  identical  and  consequently  the  par- 
ties' declarations  of  will  have  the  same  content.  We 
regard  this  argument  as  a  misunderstanding  of  the 
process  of  law-making  which  takes  place  in  every 
treaty.  If  it  were  correct  that  in  a  contractual  treaty 
each  party  seeks  a  different  end,  there  would  be  no 

*    Section  F  below. 


THE   INTERNATIONAL   LEGAL  COMMUNITY         257 

harmony  of  wills  and  therefore  no  treaty.  A  treaty  can 
be  made  only  when  the  parties  seek  the  same  end ;  and 
that  which  both  parties  seek  is  precisely  the  validity  of 
those  legal  rules  which  have  been  formulated  in  the 
treaty.  Every  contractual  treaty  is  the  expression  of 
a  legal  community,  and  the  same  is  true  of  the  so-called 
declaratory  or  law-making  treaty.  The  harmony  of 
wills  in  both  cases  relates  not  to  an  agreement  with 
reference  to  interests,  but  to  an  agreement  with  ref- 
erence to  law.  If  there  were  an  agreement  with  reference 
to  interests,  there  would  be  no  need  to  make  law. 
It  is  precisely  because  there  is  a  disparity  of  interests 
that  the  legal  value  of  interests  must  be  fixed.  Such  a 
fixing  of  legal  values  occurs  in  both  kinds  of  treaty. 
The  idea  which  lies  at  the  basis  of  this  distinction, 
in  our  opinion,  is  probably  the  following.  In  the  case 
of  treaties  which,  for  example,  establish  rules  regarding 
neutrality,  extradition,  or  private  international  law,  — 
what  are  described  as  declaratory  or  law-making  trea- 
ties, --  that  which  is  subjected  to  regulation  is  the  in- 
terest of  every  state  in  securing  the  validity  of  its  own 
legal  standard.  Thus  the  treaty  proceeds  directly  to 
limit  the  freedom  of  the  state  with  respect  to  legisla- 
tion. Governments,  therefore,  confer  with  one  another 
as  law-making  organs  with  reference  to  the  legal  stand- 
ard to  be  prescribed.  In  the  case  of  the  so-called  con- 
tractual treaties,  on  the  other  hand,  governments  stand 
opposed  to  one  another  as  organs  of  public  interests 
though  at  the  same  time  they  act  also  as  law-making 
organs.  Thus  the  distinction  between  contractual  and 
declaratory  treaties  expresses  the  contrast  between  the 

The  modern  idea  of  the  State.  17 


258  THE   MODERN   IDEA  OF  THE   STATE 

state  as  a  community  of  interests  and  the  state  as  a 
legal  community,  which  has  been  previously  discussed. 
If  legislation  is  required  for  the  public  interests  which 
fall  to  the  care  of  the  government,  the  same  organ 
which  cares  for  those  interests  takes  part  also  in  the 
legislation.  If,  on  the  other  hand,  legislation  is  needed 
to  preserve  interests  which  are  not  cared  for  by  the 
government,  and  which  accordingly  are  generally  not 
regarded  as  public  interests,  then  the  government  acts 
exclusively  as  a  law-making  organ.  If  one  keeps  this 
in  view,  then  the  treaty  in  the  first  case  (when  it  relates 
to  a  contract)  has  a  twofold  effect :  first,  each  state's 
freedom  of  legislation  is  limited  in  a  specific  respect, 
and  second,  the  government's  freedom  in  the  care  of  pub- 
lic interests  is  curtailed  also,  in  respect  to  whatever 
has  been  set  up  by  international  legislation.  On  the 
other  hand,  a  treaty  in  the  other  case  (that  is,  a  decla- 
ration) merely  brings  about  a  change  in  the  right  of  the 
state  to  legislate  according  to  its  own  ideas.  The  dis- 
tinction between  contractual  and  declaratory  treaties, 
therefore,  is  a  result  of  the  special  emphasis  given  in 
the  first  case  to  the  limitation  which  the  government 
suffers  as  an  organ  of  interests.  This  limitation  is  re- 
garded as  a  curtailment  of  the  competence  of  the  state 
itself.  This,  however,  is  incorrect;  it  rests  on  a  conful 
sion  between  the  true  conception  of  the  state  as  a  lega- 
community  and  the  conception  of  it  as  a  complex  of 
public  interests  for  which,  at  least  for  the  present, 
the  government  is  the  organ.  If  one  holds  firmly  to 
the  true  conception  of  the  state,  one  can  speak  of  it 
as  being  limited  or  bound  only  in  so  far  as  it  is  limited 


THE    INTERNATIONAL   LEGAL   COMMUNITY         259 

with  respect  to  legislation,  and  this  is  the  case  with 
all  treaties.  It  may  of  course  follow  from  this  that  the 
government  suffers  a  limitation  with  reference  to  its 
care  for  public  interests,  but  this  is  neither  more  nor 
less  significant  than  the  fact  that  the  establishment  of 
international  law  may  result  in  limiting  the  powers  of 
an  organ  which  cares  for  other  than  public  interests. 
The  peculiarity  in  the  first  case  lies  only  in  the  fact 
that  two  different  tasks,  the  care  of  the  law  and  the 
care  of  interests,  are  performed  by  one  and  the  same 
organ,  the  government.  But  the  state  comes  into  con- 
sideration only  when  the  point  at  issue  is  the  care  of 
the  law.  It  is  never  concerned  in  a  limitation  upon  the 
care  of  interests,  even  though  as  a  matter  of  terminol- 
ogy public  interests  are  described  as  interests  of  the 
state,  in  accordance  with  the  old  idea  of  the  state  which 
developed  under  absolute  monarchy.  Limitations  upon 
the  care  of  interests  are  a  constant  result  of  the  legal 
evaluation  of  interests.  It  is  obvious  that  it  makes  no 
difference  whether  the  interests  in  question  are  cared 
for  by  the  government  or  by  some  other  agency.  But 
the  right  clue  has  been  lost  when  the  interests  cared 
for  by  the  government  are  regarded  as  interests  of  the 
state.  From  this  point  of  view  it  is  doubtless  correct 
to  say  that  some  treaties  involve  a  limitation  upon  the 
care  of  state-interests  while  others  do  not.  This  is  the 
result  of  the  incorrect  theory  which  extends  the  con- 
ception of  the  state  to  include  the  complex  of  public 
interests. 

E.  Legislation.  The  third  kind  of  law-making,  legisla- 
tion, takes  place  in  international  law  as  yet  only  occa- 


260  THE   MODERN   IDEA  OF  THE   STATE. 

sionally.  So  far  as  it  does  occur  in  this  field,  it  is  law- 
making  for  specific  interests.  This  is  self-evident ;  if  it 
were  otherwise,  the  community  for  which  the  legisla- 
ture has  to  make  law  would  be  a  state,  and  then  the 
law  would  cease  to  be  international  in  character.  The 
making  of  international  law  by  legislation  can  take 
place  only  where  a  law-making  organ  has  been  created 
for  specific  interests.  At  this  point  we  must  pause  a 
moment  to  define  more  exactly  the  nature  of  law- 
making  in  the  form  of  legislation. 

International  law  which  arises  from  treaties  gains 
its  importance  exclusively  from  the  special  legal  con- 
victions found  in  the  different  states.  Its  validity  re- 
sults from  the  reaction  of  each  state's  special  sense  of 
right  upon  the  rules  established  by  it.  But  the  inter- 
national legal  organization  is  inadequate.  The  sense  of 
right  which  exists  in  the  peoples  of  civilized  states  must 
be  able  to  make  itself  effective  as  an  autonomous 
power,  independent  of  its  coincidence  with  the  sense  of 
right  of  any  particular  state.  For  this  autonomous  ac- 
tivity it  is  necessary,  in  the  first  place,  that  the  law 
be  formed  by  its  own  organs.  And  such  an  organ  actu- 
ally functions  when  the  law  is  made  by  a  majority  of 
those  who  participate  in  the  law-making.  When  the 
decision  is  left  to  the  preponderance  of  conviction,  the 
validity  of  the  law  is  made  independent  of  the  special 
conviction  of  each  state  by  itself.  In  the  case  of  a 
treaty,  the  legal  convictions  of  both  parties,  each  taken 
by  itself,  must  agree  regarding  the  content  of  the  rule, 
in  order  that  this  rule  may  be  valid  for  both  of  them. 
In  the  functioning  of  an  organ,  a  majority  is  sufficient, 


THE   INTERNATIONAL  LEGAL   COMMUNITY         261 

and  it  makes  no  difference  which  states  have  contrib- 
uted to  make  up  this  majority.  In  this  respect  statu- 
tory law  stands  on  the  same  plane  as  customary  law. 
The  force  of  customary  law  also  is  founded  in  the 
amount  of  legal  conviction  which  is  revealed  by  the 
conduct  of  the  majority  of  states  in  question.  Hence 
in  this  case  also  it  makes  no  difference  which  states 
have  contributed  the  legal  convictions  that  support  the 
law.  Here  too  it  may  be  said  that  an  organ  functions, 
though  it  is  only  an  organ  composed  of  changing  mem- 
bers and  one  which  acts  by  instinct  rather  than  with  a 
clear  consciousness. 

The  composition  and  competence  of  such  organs  will 
commonly  be  the  result  of  a  treaty.  Still  it  is  conceiva- 
ble that  an  assembly  or  a  person  might  develop  into 
a  law-making  organ  and  that  its  competence  might  be 
settled  by  unwritten  law,  but  in  international  legal 
relationships  this  possibility  is  very  nearly  excluded. 
On  the  other  hand,  in  the  case  of  the  state  itself  it  oc- 
curs frequently,  as  for  example,  when  a  nation  sepa- 
rates itself  by  revolution  from  another  political  com- 
munity and  forms  a  state  for  itself,  or  when  the  form 
of  government  is  changed  from  a  monarchy  to  a  re- 
public. 

So  far  as  the  composition  of  the  law-making  organ  is 
concerned,  it  is  commonly  composed  of  officials  or  of 
members  nominated  by  the  government,  with  the  re- 
sult that  it  represents  the  sense  of  right  only  as  it 
exists  in  government  circles.  The  sense  of  right  which 
is  effective  in  the  nation  has,  therefore,  little  influence 
except  as  persons  connected  with  the  government  are 


262  THE   MODERN   IDEA  OF  THE   STATE 

compelled,  for  the  sake  of  their  official  activity,  to  keep 
in  touch  with  the  national  sense  of  right.  A  direct 
representation  of  the  nation,  an  international  parlia- 
ment, is  lacking.  But  the  establishment  of  such  a  rep- 
resentative body,  organized  on  the  model  of  state- 
parliaments,  will  some  time  become  necessary,  after 
the  participation  of  the  people  in  the  conclusion  of 
treaties  has  been  secured  within  the  state  itself,  and 
after  parliament  has  gained  a  recognized  influence  over 
the  administration  of  foreign  affairs. 

The  competence  of  this  organ  for  the  making  of  in- 
ternational law  will  always  be  determined  by  reference 
to  the  interests  for  which  law-making  appears  neces- 
sary. The  international  organization  of  humanity  pro- 
ceeds in  the  same  direction  as  the  organization  of  a 
nation  within  the  state.  Conscious  law-making  occurs 
in  a  nation  or  tribe  when  it  seems  to  be  necessary  for 
the  care  of  certain  public  interests,  especially  military 
interests.  As  more  and  more  interests  of  this  kind  re- 
quire the  authority  of  law,  conscious  law-making  is 
extended,  until  finally  a  full-fledged  legislative  agency 
comes  into  existence.  A  similar  development  is  to  be 
expected  also  in  the  field  of  international  law.  The 
starting-point  lies  in  the  care  for  specific  interests  by 
law.  As  the  solidarity  of  interests  between  different 
states  increases,  law-making  organs  superior  to  the  states 
are  established,  in  order  that  these  interests  may  share 
the  protection  of  law.  Eventually  these  agencies  will 
be  fused  into  an  organization  to  make  effective  a 
world- wide  sense  of  right  in  every  field. 


THE   INTERNATIONAL  LEGAL  COMMUNITY         263 

F.  The  Internal  Transformation  of  International  Law. 
Custom,  treaty,  judicial  decisions,  and  legislation  rep- 
resent different  ways  in  which  international  law  re- 
veals itself  externally.  But  aside  from  the  external 
causes  which  form  and  modify  international  law,  we 
must  consider  separately  the  inner  causes  which  bring 
about  changes  in  this  branch  of  the  law,  without  these 
changes  being  previously  established  externally  in  any 
of  the  ways  mentioned. 

These  inner  causes  lie  in  the  nature  of  law  as  the  pre- 
cipitate from  an  evaluation  of  competing  interests.  The 
legal  evaluation  established  in  a  custom,  in  a  treaty, 
in  the  decision  of  a  court,  or  in  an  act  of  the  legislature 
may  cease  to  be  valid  if  there  occurs  a  different  conflict 
between  the  interests  evaluated,  to  which  this  legal 
evaluation  is  no  longer  applicable.  Externally  it  remains 
effective  but  internally  it  has  lost  its  binding  force. 

This  internal  decay  of  the  law  is  seen  most  clearly  in 
the  case  of  treaty-law.  An  obligation  which  was  looked 
upon  as  binding  at  the  time  a  treaty  was  concluded 
may  lose  its  force  without  being  abrogated  by  all  the 
parties  who  established  it.  This  happens  when  the  cir- 
cumstances under  which  it  was  concluded,  and  which 
at  that  time  led  to  the  acceptance  of  a  legal  bond,  have 
so  far  changed  that  a  different  conflict  of  interests  has 
developed  which  is  no  longer  provided  for  in  the  earlier 
evaluation.  In  order  to  give  a  new  legal  evaluation  to 
this  shifting  worth  of  interests,  law-making  for  in- 
terests within  the  state  is  organized  in  a  legislative 
power.  This  organization,  however,  is  not  always  suf- 
ficient to  keep  the  law  abreast  of  the  changing  con- 


264  THE   MODERN   IDEA   OF  THE    STATE 

flicts  of  interest.  Consequently  even  within  the  state 
legal  relationships  may  cease  to  be  effective  because 
of  a  shifting  of  the  value  of  the  interests  which  they 
regulate,  although  neither  the  parties  concerned  nor 
the  legislature  has  brought  about  a  revision  of  the 
earlier  evaluation.  But  such  an  internal  decay  of  the 
law  is  the  exception,  because  we  possess  within  the  state 
an  organization  for  law-making.  It  is  true  that  this 
organization  is  inadequate,  but  for  the  most  part  it 
enables  the  law  to  keep  pace  with  these  shifting  values. 
Thus  where  these  inner  causes  of  legal  change  are  at 
work  within  the  state,  it  has  been  possible  to  classify 
the  cases  under  certain  fixed  heads,  such  as  superior 
force,  a  case  of  necessity,  etc.  But  in  the  field  of  inter- 
national relationships  such  cases  occur  far  more  fre- 
quently, since  here  the  organization  for  law-making  is 
still  extremely  defective  and  is  limited  in  the  main  to 
certain  formal  rules  with  reference  to  the  establish- 
ment and  abrogation  of  treaties.  The  new  organization 
for  law-making  which,  as  a  result  of  the  Hague  Peace 
Conferences,  has  begun  to  get  under  way  and  which  has 
been  discussed  by  Schiicking  1)  in  an  illuminating  man- 
ner, can  scarcely  be  taken  into  consideration  as  yet, 
because  its  action  is  so  slow.  Up  to  the  present  time, 
therefore,  we  have  to  deal  only  with  law-making  by 
means  of  treaties.  The  law  created  in  this  manner, 
however,  contains  nothing  with  reference  to  the  rea- 
sons which  might  effect  a  change  in  rights  and  obliga- 
tions apart  from  a  contractual  arrangement  directed 

l)  The  International  Union  of  the  Hague  Conferences,  English  transla- 
tion by  C.  G.  Fenwick,  1918. 


THE   INTERNATIONAL  LEGAL   COMMUNITY.        265 

especially  to  that  end.  Hence  the  unwritten  interna- 
tional law  alone  can  give  us  any  assistance  in  this  case. 
But  even  though  we  cannot  deny  some  significance  to 
this  unwritten  law,  its  content  in  this  respect  is  still 
so  little  determined  that  it  is  very  hard  to  render  it 
useful  in  practice  except  through  the  loosest  of  for- 
mulas, such  as  rebus  sic  stantibus.  And  yet  a  rule  is 
certainly  badly  needed  where  such  questions  as  the 
following  present  themselves.  Is  a  given  treaty  to  be 
recognized  as  still  binding  ?  Are  the  interests  of  a  given 
state  to  be  counted  as  having  a  higher  value  than  the 
interests  of  other  states  with  respect  to  the  importance 
which  they  possess  for  the  civilized  community?  Are 
these  other  states,  therefore,  obliged  to  accept  limita- 
tions upon  the  validity  of  their  interests,  or  the  re- 
verse ?  Do  a  state's  acts  and  conduct  which  further  its 
own  interests  or  injure  those  of  another  state  violate 
rules  of  law  which  have  been  established  by  treaty  or 
custom  ? 

Numerous  cases  might  be  mentioned  where  such 
questions  arise  and  there  exists  neither  a  rule  of  posi- 
tive law  for  settling  them  nor  an  impartial  judicial  au- 
thority to  take  cognizance  of  them.  Consequently, 
since  they  must  be  dealt  with,  they  are  settled  by  the 
interested  states  themselves.  Some  examples  may  be 
given.  Article  1 1  of  the  Treaty  of  Paris,  which  forbade 
the  maintenance  of  warships  in  the  Black  Sea,  was  abro- 
gated by  Russia  in  1870.  Later  the  Conference  of  Lon- 
don acquiesced.  It  is  true  that  on  this  occasion  the 
great  powers  declared  that  a  unilateral  abrogation  of 
a  treaty  was  contrary  to  international  law;  but  this 


266  THE   MODERN   IDEA  OF  THE   STATE 

was  a  protestatio  actui  contraria  and  it  is  untrue  as  a  gen- 
eral principle.  In  1908  Austria- Hungary  transformed 
the  occupation  of  Bosnia  and  Herzegovina,  established 
by  the  Treaty  of  Berlin  in  1 878,  into  an  annexation  of 
these  countries.  In  violation  of  the  same  treaty  Bulga- 
ria had  already  changed  its  relations  with  Turkey  on 
its  own  authority  and  had  constituted  itself  an  inde- 
pendent kingdom.  In  1905  Norway  abrogated  the 
union  with  Sweden.  In  1914  Germany  violated  the  neu- 
trality of  Belgium  and  Luxemburg  which  had  been 
guaranteed  by  it,  that  is,  by  Prussia. 

It  would  be  begging  the  question  to  pass  an  off-hand 
judgment  on  all  these  cases  by  a  mere  reference  to  the 
rule,  pacta  sunt  servanda.  This  adage,  which  von  Liszt1) 
inflates  into  a  "principle  forming  the  foundation  of  all 
law/'  cannot  be  maintained  in  its  integrity.  As  a  mat- 
ter of  fact,  nobody,  not  even  von  Liszt  himself,  regards 
it  as  a  rule  of  law  which  is  valid  without  exception 
either  within  or  without  the  state.  No,  the  law  does  not 
spring  from  the  will  of  the  parts,  neither  the  law  which 
controls  the  lives  of  states  nor  that  which  controls  the 
lives  of  individuals;  it  springs  from  the  demands  which 
the  whole,  including  all  the  parts,  is  able  to  establish 
for  its  own  development.  What  these  demands  are  is 
decided  within  the  state  by  the  legislature.  In  interna- 
tional relations,  on  the  other  hand,  there  is  no  sover- 
eign authority  to  enforce  its  judgment  regarding  the 
modification  or  the  abrogation  of  the  law.  Here  we 
have  to  seek  a  support  for  a  decision  between  right  and 
wrong  in  the  unstable  foundations  of  an  unorganized 

*)  Das  Vdlkerrecht,  Ed.  11,  p.  167. 


THE   INTERNATIONAL   LEGAL   COMMUNITY         267 

legal  community.  Of  these  foundations  we  can  name 
only  one  which,  as  history  shows,  has  always  turned 
the  scale,  when  something  has  been  set  aside  that  was 
originally  regarded  as  law.  This  is  the  higher  worth 
which  a  more  inclusive  civilization  may  claim  merely 
because  it  is  more  inclusive,  as  compared  with  the  nar- 
rower civilizations  into  which  mankind  is  divided. 
Mankind  has  progressed  from  small,  more  or  less  organ- 
ized groups,  to  larger  and  larger  associations,  and  the 
value  of  these  larger  associations  for  the  development 
of  mankind  has  always  been  decisive  in  fixing  the  law 
which  should  be  valid  for  the  parts.  To  be  sure,  this  is 
little  more  than  an  abstract  formula,  since  this  histor- 
ical process  throws  no  light  upon  the  importance 
which  each  part  has  in  the  development  of  the  whole. 
And  it  is  this  last  point  which  determines  the  legal  val- 
ue of  the  parts  and  therefore  determines  whether  the  law 
to  which  each  is  subject  is  to  be  maintained  or  abolished. 
Nevertheless  what  has  been  said  above  may  be  taken  as 
something  more  than  a  mere  formula,  since  in  any  case 
it  makes  clear  this  important  point,  that  the  law  does 
not  owe  its  content  to  that  which  the  parts  desire  and 
will  and  establish  in  agreements  and  treaties.  In  order 
to  determine  the  importance  of  a  nation,  and  therefore 
of  the  law  which  it  might  put  into  effect,  we  must  put 
ourselves  at  the  center  of  the  whole  of  civilization,  in 
comparison  with  which  the  nations  and  their  infinitely 
numerous  interests  possess  only  a  relative  value.  But 
even  this  relative  value  suffers  continual  change,  often 
without  our  willing  or  desiring  it,  whereas  there  is  no 
organized  power  which  might  keep  abreast  of  these 


268      THE  MODERN  IDEA  OF  THE  STATE 

changes  and  transform  the  positive  law  in  accordance 
with  them.  Hence  this  is  brought  about  by  unorgan- 
ized means,  because  it  is  a  law  in  the  highest  sense  of  the 
word  that  these  shiftings  in  the  value  of  interests  must 
find  expression  in  the  legal  order  of  the  community. 

The  very  justifiable  desire  to  avoid  so  far  as  possible 
these  unorganized  changes,  and  to  make  the  solution 
of  legal  questions  independent  of  the  mere  strength  of 
the  states  between  which  there  is  a  conflict  of  interests, 
has  caused  certain  states  to  make  arbitration  treaties 
in  order  to  secure  an  impartial  adjudication  of  all  such 
conflicts.  But  it  will  be  a  long  time  before  the  great  pow- 
ers will  follow  this  example.  In  order  that  this  should 
happen  it  would  be  necessary  above  all  that  certain 
concrete  rules  should  have  developed.  Before  the  great 
powers  will  abandon  their  position  of  actual  superior- 
ity, they  must  have  some  assurance  regarding  the  pos- 
sible effects  of  an  arbitral  decision  upon  the  continu- 
ance both  of  treaties  concluded  by  them  and  of  rules  of 
international  law  which  have  proved  satisfactory.  They 
will  not  be  ready  to  subject  themselves  to  an  organ 
which,  however  highly  endowed  with  knowledge  and 
the  sense  of  right,  will  have  to  render  decisions  for 
which  it  has  no  other  guide  than  the  inchoate  sense  of 
right  of  the  family  of  nations.  The  smaller  states,  be- 
tween which  alone  general  treaties  of  arbitration  at 
present  exist,  are  now  able  to  develop  concrete  rules  by 
means  of  arbitral  decisions  upon  the  continuing  valid- 
ity of  treaties  which  have  been  concluded  between  them 
and  upon  the  rules  of  international  law  in  general ;  that 
is  to  say,  they  can  develop  such  rules  by  means  of  ju- 


THE    INTERNATIONAL   LEGAL   COMMUNITY         269 

risprudence.  There  will  never  be  an  organ  of  interna- 
tional law  until  the  law  gets  a  fairly  definite  content 
with  reference  to  the  internal  decay  of  international 
rights  and  obligations.  But  once  such  an  organ  exists, 
its  acts  with  reference  to  this  matter  may  be  the  means 
of  developing  it  into  a  more  general  organ  of  legis- 
lation. 

G.  The  Rise  of  a  World  State.  The  progress  of  the  po- 
litical organization  which  leads  to  the  establishment  of 
confederations  and  federal  states  must  eventually  issue 
in  an  organ  founded  upon  popular  representation 
which  will  be  able  to  enforce  a  world-wide  sense  of 
right  in  every  field.  The  right  of  a  nation  to  live  accord- 
ing to  its  own  law  will  then  have  vanished  and  states 
will  be  amalgamated  into  a  single  world-empire.  This 
world-empire,  which  will  bring  us  the  One  State  unit- 
ing the  whole  of  mankind,  may  still  be  delayed  for  cen- 
turies; but  it  must  not  be  forgotten  that  the  process 
which  is  bringing  this  empire  into  being  is  going  on  be- 
fore our  eyes.  As  interests  of  an  international  nature 
increase,  the  center  of  law-making  is  shifted  from  the 
states  to  an  ever-broadening  legal  community.  But  at 
present  there  still  remain  organs  of  the  states  which  in 
their  national  capacity  share  in  the  establishment  of  in- 
ternational law  by  means  of  treaties.  The  One  State  will 
never  appear  until  an  organ  has  developed  specially  de- 
signed to  make  international  law  and  proceeding  from 
the  people  themselves.  The  present  states  will  be  re- 
lated to  this  One  State  as  its  provinces,  i.  e.,  as  commu- 
nities equipped,  to  be  sure,  with  a  special  law-making 
organ,  but  subject  to  the  limitation  that  this  organ  has 


270  THE   MODERN   IDEA   OF  THE   STATE 

merely  to  provide  for  groups  of  interests  whose  legal 
value  is  fixed  elsewhere. 

It  is  of  minor  importance,  however,  to  speculate 
upon  a  world-state  and  to  search  for  interests  whose  le- 
gal worth,  like  that  of  the  interests  involved  in  the  abo- 
lition of  slavery,  is  already  accepted  by  the  whole 
world.  It  appears  to  be  more  important  to  note  the  le- 
gal community  of  civilized  nations,  since  this  is  the 
source  of  really  effective  international  law.  The  history 
of  the  origin  of  states  sheds  all  the  light  necessary  upon 
the  means  by  which  this  community  will  develop  into 
a  state.  It  is  certain  that  this  process  does  not  originate 
in  the  organization  and  centralization  of  law-making. 
Both  of  these  results  have  been  achieved  in  most  coun- 
tries in  no  more  than  a  century.  And  it  is  no  less  certain 
also  that  the  idea  of  a  state  has  not  realized  itself  in  a 
nation  through  the  organization  and  centralization  of 
the  administration  of  justice.  Nations  have  become  states 
through  the  organization  and  centralization  of  an  ap- 
paratus of  soldiers,  police,  and  officials  which  served 
as  an  instrument  in  the  hands  of  individuals  to  bring 
about  an  equal  and  identical  subjection  of  all.  In  this 
way  the  idea  of  sovereignty  gained  a  firm  footing  in  the 
consciousness  of  men,  and  contemporary  states  are  the 
outgrowth  of  the  working  of  this  idea.  That  the  modern 
idea  of  the  state  no  longer  finds  the  basis  of  subjection 
in  the  authority  of  the  sovereign,  but  in  the  law  which 
is  valid  by  its  own  force,  in  no  wise  alters  the  signifi- 
cance and  the  value  which  the  idea  of  sovereignty  has 
had  for  the  life  of  the  community.  Before  the  autono- 
mous rulership  of  law  can  be  recognized  as  an  effective 


THE    INTERNATIONAL  LEGAL   COMMUNITY         271 

principle,  the  civilization  of  a  nation  must  have  devel- 
oped sufficiently  for  it  to  feel  that  its  communal  life  is 
ruled  exclusively  by  the  power  of  an  ethical  idea,  like 
that  of  law.  In  the  centuries  which  preceded  the  rise  of 
the  modern  idea  of  the  state,  such  a  civilization  was 
lacking  in  the  great  majority  of  nations.  Thus  there  was 
room  only  for  a  heteronomous  authority,  such  as  is 
still  found  in  colonies  which  do  not  possess  self-govern- 
ment. Political  theory  busied  itself  earnestly  with  pro- 
viding a  sanction  for  this  authority.  It  has  based  it  on 
the  will  of  God ;  has  found  it  in  the  service  of  the  law ; 
has  attempted  to  create  for  it  a  legal  title  of  its  own 
through  the  fiction  of  a  contract  which  was  conceived 
to  call  the  sovereignty  into  existence.  But  it  has  never 
been  able  to  give  to  this  authority  any  other  character 
than  that  of  a  heteronomous  authority,  because  it 
ruled,  and  could  rule,  not  by  virtue  of  any  intrinsic  and 
essential  quality,  but  only  by  virtue  of  its  external 
power.  The  beginning  and  end  of  political  theory,  there- 
fore, was  a  power  existing  outside  the  law,  which  al- 
ways revealed  itself  in  the  form  of  a  control  over 
the  organized,  compulsory  apparatus  of  the  military 
and  civil  service.  This  sovereign  authority  is  only  now 
beginning  to  give  place  to  the  authority  of  the  law,  and 
thus  the  rulership  of  an  intrinsic  and  autonomous 
power  is  coming  into  effect.  The  life  of  the  national  com- 
munity is  now  at  this  stage.  This  treatise  seeks  to  ex- 
press this  fact  by  elucidating  the  modern  idea  of  the 
state. 

The  political  evolution  of  the  international  commu- 
nity must  pass  through  the  phase  of  the  idea  of  sovereignty , 


272  THE   MODERN   IDEA  OF  THE   STATE 

just  as  that  of  the  national  community  did.  This  means 
that  the  formation  of  an  international  state  also  re- 
quires a  center  of  power  through  which  the  subjection  of 
mankind,   divided  among  the  states,   can  alone  be 
brought  about.  The  production  of  an  international  law 
and  the  organization  of  a  world  court  cannot  alone 
break  the  national  consciousness  of  power  which  contin- 
ually finds  new  nourishment  in  the  increasing  prepa- 
rations for  war.  To  accomplish  this  it  is  necessary  to 
establish  a  sovereign  which,  as  of  old,  will  enforce  the 
law  by  means  of  an  instrument  of  power  subject  to  its 
orders,  and  which  from  the  outside  will  imbue  the  con- 
sciousness of  peoples  and  their  leaders  with  the  domi- 
nation of  an  ethical  power.  From  this  point  of  view,  how- 
ever, the  political  evolution  of  the  international  com- 
munity has  to  contend  with  many  more  serious  diffi- 
culties than  had  to  be  overcome  in  the  formation  of  the 
existing  states.  Both  the  establishment  of  a  sovereignty 
in  and  for  itself,  and  its  equipment  with  the  means 
of  compulsion,  must  be  achieved  consciously.  This  re- 
quires a  degree  of  self-restraint  on  the  part  of  govern- 
ments which  is  difficult  to  obtain  in  proportion  to  the 
magnitude  of  the  compulsory  power  which  they  are 
now  able  to  exercise.  This  seems  to  make  an  impossible 
demand  upon  powerful  states.  It  may  be  that  the  con- 
sciousness of  this  impossibility  exists  in  governments 
and  in  the  social  circles  where  their  members  move.  It 
may  be  that  unification  is  not  to  result  spontaneously 
in  an  association  based  on  necessity  to  which  a  common 
danger  might  impel  them.  If  so,  that  which  must  come 
may  either  originate  in  an  association  of  the  smaller 


THE   INTERNATIONAL  LEGAL   COMMUNITY         273 

states,  less  overcome  by  the  drunkenness  of  power,  or 
it  may  be  born  in  the  lower  levels  of  the  population, 
where  frequently  higher  ideals  are  to  be  found  than  can 
flourish  in  a  gilded  environment.  But  however  the  con- 
centration may  be  accomplished,  it  is  necessary  in  any 
event  that  the  international  sovereign  should  possess 
independence.  Only  thus  can  the  binding  force  of  law  be 
made  independent  of  the  states  which  must  be  brought 
and  kept  under  subjection  to  the  law. 

We  should,  therefore,  welcome  the  idea  which  is  gain- 
ing ground  in  the  field  of  international  law  that  the 
development  of  the  political  organization  of  an  inter- 
national legal  community  must  be  sought  in  the  con- 
struction of  an  international  sovereign  much  more  than 
in  law-making  and  the  expansion  of  judicial  action. 
Our  countryman,  van  Vollenhoven,  in  emphasizing 
the  importance  of  an  international  police  power,  has 
for  the  first  time  given  this  idea  a  definite  form.  He  has 
defended  with  historical  judgment  the  necessity  for  a 
revival,  in  this  connection,  of  the  idea  of  sovereignty 
in  order  to  create  an  international  organization.  It  is 
not  necessary  here  to  decide  how  far  this  conception  of 
the  construction  of  an  international  center  of  power 
takes  sufficient  account  of  the  need  for  the  independ- 
ence of  the  sovereign.  The  idea  itself  deserves  full  recog- 
nition as  a  first  approach  toward  the  goal  and,  indeed, 
is  receiving  increasing  attention.  An  insight  into  the 
need  for  an  independent  sovereign  is  most  clearly  ex- 
pressed by  the  Finnish  publicist,  Rafael  Ehrich, 1)  who 
would  entrust  the  means  of  power  to  an  international 

*)  Probleme  der  internationalen  Organisation,  1914,  pp.  67  ff. 

The  modern  idea  of  the  State.  18 


274  THE   MODERN   IDEA   OF  THE    STATE 

state  to  be  organized  for  this  purpose,  to  a  state  ad  hoc. 
It  is  not  necessary  here  to  go  more  deeply  into  these 
attempts  to  find  a  place  for  the  idea  of  sovereignty  in  the 
international  community.  They  illustrate  sufficiently 
what  has  been  remarked  above,  that  the  starting- 
point  for  the  development  of  an  international  commu- 
nity into  a  state  in  the  modern  sense,  i.  e.,  into  an  inde- 
pendent legal  community,  lies  in  the  establishment  of 
an  international  sovereign  authority.  Such  a  commu- 
nity will  come  into  being,  however,  only  when  a  legal 
standard,  independent  of  the  different  states,  can  be 
applied  in  law-making.  And  this  in  turn  will  occur 
when  a  world-wide  sense  of  right  has  been  organized  in 
a  manner  similar  to  that  which  now  exists  in  civilized 
states.  Thus  the  modern  idea  of  the  state  will  be  real- 
ized for  the  entire  community  of  civilized  humanity. 
As  a  transition  stage  to  this,  however,  it  is  necessary 
that  there  be  a  precedent  condition,  similar  to  that 
which  developed  at  the  beginning  of  modern  history, 
when  a  self -constituted  sovereign,  standing  above  the 
patch-work  of  legal  communities  and  superior  to  an 
unorganized  judiciary,  was  able  by  means  of  an  instru- 
ment of  power  dependent  upon  itself  alone  to  imbue 
the  entire  people  with  the  idea  of  authority.  In  this 
way  alone  it  was  possible  for  this  idea  to  gain  a  firm  ba- 
sis in  the  ethical  and  impersonal  power  of  the  law.  In 
this  way  alone  it  is  possible  at  the  present  time  for  the 
same  idea  to  gain  a  similar  basis  for  the  international 
community. 


INDEX. 


Absolute  monarchy,  xvn — xx, 

XXVIII,          XXXII,          XXXVIII, 

LXXVII,  LXXX  f,  1,3,  6,  17 — 

19,  23,  34,  58,  111,  120,  152, 

217—220,  223,  230  f,  259. 
Administrative  law,  104f,  139 — 

144,  225. 
Albania,  state  organization  of, 

set  up  by  international  law, 

239. 
Althusius,  Politica  methodice  di- 

gesta,   17—19,  21,  25. 
Amending  power,    102. 
Amendment    of    constitutions, 

difficulty  of,  76  f,  108  f,  118, 

138  f,    182. 
Andreae,  on  contract  in  private 

law,   131. 
Anema,  53,  65. 
Aquinas,  revived  Greek  idea  of 

the  state,  16. 
Arbitration,   general   court   of, 

252. 
Arbitration    treaties,    general, 

268. 

Aristotle,  xii,  xin,    15. 
Aristotelian   philosophy,    1 6. 
Association,   principle  of,   235. 
Austinian    definition    of    law, 

XXIX. 

Austinian  School  of  Jurispru- 
dence, XXVIII. 

Autarchy,  XV. 

Bakery  boards,   168,  169. 

Bagehot  established  idea  of  par- 
liamentary sovereignty,  xxi. 


Barker,  The  Rule  of  Law,  xxxv. 
Berlin,  Treaty  of,   266. 
Beseler,  XLI. 

Bierling's  Recognition  theory, 
42. 

Bismarck's  conflict  with  Prus- 
sian Landtag  over  the  bud- 
get, 138. 

Bodin,  De  Republica,  xvin,  xix, 
xxin,  218. 

Bornhak,  Preussisches  Staats- 
recht,  xxv. 

Bosanquet,  Philosophical  Theo- 
ry of  the  State,  L  note,  LII. 

Bosnia  and  Herzegovina  anne- 
xed by  Austria  Hungary,  266. 

Boutmy,  Constitutional  Law, 
xvn  "note. 

Bradley,  Ethical  Studies,  L  note. 

Buckle,  History  of  Civilization, 
190. 

Budget,  conflict  over,  in  Prus- 
sian Landtag,  138. 

Bulgaria  changed  its  relations 

with  Turkey,   266. 
Burgess,  XLVIII. 

Burial,  statute  in  Netherlands 

on,   105. 

Burke,  177,   183. 
Canonists,  XL. 

Cassation,  Court  of  (in  Nether- 
lands), 106  f. 

Caste  rule,  95. 

Catholic  theory  of  sovereign 
authority,  43. 


276 


INDEX. 


Celibacy  of  priests,    151. 

Central  Commission  for  the  Na- 
vigation of  the  Rhine,  246. 

Child  labor  in  factories,  com- 
mission in  Netherlands  on, 
190  f. 

Children,  criminal  justice  for, 
197.  See  also  Juvenile  courts. 

Children's  codes,   163. 

Coke,  xxin. 

Communistic  mode  of  life,  151. 

Comte,  Lecture  on  MSocial  Dy- 
namics", Cours  de  philosophic 
positive,  190. 

Concession  theory  of  corporate 

personality,   XLI. 
Conference  of  London,  265. 
Consent,  theory  of  government 

by,  XLVTI  f. 

Constitutions,dif  f  iculty  of  amen- 
ding, 76  f,  108  f,  118,  138  f, 
182. 

Contract  in  private  law,  131  f. 
Contract    with    the    sovereign, 
17  f,  22  f,  39. 

Conventions  of  the  constitution, 
unwritten  legal,  108  f,  139. 

Corporations,   self-governing, 
LXXVIII  ;    personality    of, 
xxxix — XLV. 

Counter-revolutionists,   1 77. 

Decentralization  of  administra- 
tion, 229  f,  of  legislation,  67, 
81,  90,  97,  f,  164,  165—174, 
230;  territorial,  165  f. 

Defective,  legislation  in  behalf 
of  mentally,  197. 

Delinquent,  reform  of  the,  197. 

Dicey,  Privy  Council,  xvn  note; 
Law  of  the  Constitution,  xxn 
— xxiv. 

Digest,  the,  XL. 

Dike  associations,  166,  168. 


Dike  commissions,  69,  243. 

Dispositive  law,  43. 

Divine  right  of  kings,  XLVII,  95, 
112,  204,  271. 

Duguit,  L'etat :  le  droit  objectif 
et  la  loi  positive;  Law  in  the 
Modern  State  ;  Traite  de  droit 
constitutionnel;  Le  droit  social, 
le  droit  individuel  et  la  trans- 
formation de  I'etat  ;  Les  trans- 
formations du  droit  public, 

LII — LVI,      LXVII,      LXXVII     f, 

LXXIX,  67,  201 — 203,  205 — 
208,  229. 

Dunning,  Political  Theories  from 
Rousseau  to  Spencer,  xi. 

Durkheim  on  the  division  of 
social  labor,  LII. 

Education,  evaluation  of  con- 
flicting interests  in,  LXIX;  is 
a  public  interest,  LIV. 

Eggers,  Rectoral  oration  by, 
100. 

Ehrich,  Probleme  der  internatio- 
nalen  Organisation,  273. 

Ehrlich,  Theorie  der  Rechtsquel- 
len,  110,  141. 

Eichhorn,  XLI. 

Elizabeth  (of  England),  natio- 
nalization under,  xvm. 

Enquete,  power  of,    102. 

Ephors  in  Althusius's  system  of 
government,  1 8. 

Equality  of  states,  xxix,  265, 
267  f. 

Estates,  assembly  of,  not  a  law- 
making  body,  13. 

Fenwick,  translator  of  Schiic- 
king's  The  International  Uni- 
on of  the  Hague  Conferences, 
264  note. 

Feudalism,  xn. 

Figgis,  Churches  in  the  Modern 
State,  XLIV,  LI. 


INDEX. 


277 


Fisc,  the  state  as,  8,  143,  220. 

Franklin,  discovery  of  lightning 
rod  by,  190. 

Frederick  William  I  (of  Prus- 
sia), nationalization  under, 

XVIII. 

Free  law-making,  178. 

Free  School  of  Law,    41,    177, 

178,   196. 
French  Revolution,  xxxv,  28, 

177,    184,    188  f,    190. 
Gentz  von,    177,   183. 

Geny,  Methode  d' interpretation, 
134  note. 

Gerber  von,  Grundziige  eines  Sy- 
stems des  deutschen  Staats- 
rechts,  xxx. 

German  school  of  political  theo- 
ry, xxiv,  xxvn,  xxx,  LXXXIII 
23,  25,  28,  30,  45,  137,  139, 
201,  203,  205,  212,  219. 

Germanist  school,  XLI. 

Germany  violates  neutrality  of 
Belgium  and  Luxemburg,  266 

Gierke,  Deutsches  Genossen- 
schaftsrecht ;  Political  Theo- 
ries of  the  Middle  Ages,  XL, 
XLI,  XLIII;  on  Althusius,  20, 
25. 

Glossators,  XL. 

Gneist,  Der  Rechtsstaat,  167. 

Great   powers,    xxix,    268. 

Greek  city  state,  xn,  LI. 

Greek  political  philosophy,  xi — 

xiii,   14,   15. 
Grimm,  XLI. 
Groen  van  Prinsterer,   181. 

Grotius,  De  jure  belli  ac  pads, 

xxviii,   19—21,  41  f,  202. 
Guizot,  155. 

Hague  Peace  Conferences,  264. 
Haller  von,  206. 


Hamaker  on  contract  in  private 

law,   131. 
Hegelian  philosophy,  xxxiv,  L, 

182. 
Heilborn,  Handbuch  des  Volker- 

rechts,   244  note. 
Henry  VIII  (of  England),  na- 
tionalization under,  xvni. 
Hensel,       Hauptprobleme      der 

Ethik,  55. 

Hereditary  monarchy,  94,  217. 
Heymans,    Einfilhrung    in    die 

Ethik,  55,  70. 

Historical  process,  181 — 188. 
Historical  School  of  Law,   72, 

73,    175,    177,    178,    185. 
Hobbes,  Leviathan,  xni  f,  xxi, 

xxxvn,   XLIX,   22,   23. 
Idsinga  Van,   140. 
Ihering,     Geist    des    romischcn 

Rechts,   LVI,    132;   Zweck  im 

Recht,   133. 

Individualism,  xxxiv. 
Innocent,  iv,  XL. 
International  constitutional  law, 

246. 
International  law,  xxvin — xxx, 

LXXVI,  10,35,  210,  232—274. 
Intestate  succession,  43. 
James  I  (of  England),  xxm. 
Jellinek,  Allgemeine  Staatslehre, 

xxx,  xxxi,  xxxin,  xxxvn, 

xxxix,  6,  10,  200,  212,  235. 
Juristic  personality  of  the  state, 

XXIV,      XXVII,      XXX — XL,      L, 

LIX  f,  205  f. 

Juvenile  courts,  LXVII.  See  also 
Children,  criminal  justice  for. 

Kant,  XL vin,  190;  The  Philo- 
sophy of  Law,  224. 

Kelsen,  Hauptprobleme  der 
Staatsrechtslehre,  42,  140. 

Kinship,  basis  of  the  state  in 


278 


INDEX. 


primitive  communities,  215  f. 

Kosters,  De  plaats  van  gewoonte 
en  volksovertuiging  in  het  pri- 
vaatrecht,  99  f. 

Krabbe,  Het  Rechtsgezag, 
LXXXIII  ;  Die  Lehre  der  Rechts- 
souverdnitdt,  xiv,  xv,  xx  note, 
xxv  note,  xxx  note,  xxxn 
note,  xxxvi  note,  xxxvni, 
xxxix,  XLV,  40,  140,  204. 

Kranenburg,  Positief  recht  en 
rechtsbewustzijn,  60  note,  87, 
207. 

Kuyper,  Our  Program,    182. 

Laband,  Staatsrecht  des  deut- 
schen  Reiches,  xxx,  xxxn, 
xxxvi,  1,  2,  6,  135,  137,  138, 
204. 

Labor  legislation,  board  to  su- 
pervise enforcement  of,  230. 

Laissez  faire,  xxxv,   158. 

Laski,  The  Problem  of  Sovereign- 
ty ;  Authority  in  the  Modern 
State,  XLIV,  LI. 

Lasson,  224. 

League  of  Nations,  Covenant 
of  the,  xxix. 

Legal  sovereignty,   xxn. 

Legal  state,  xxxvi,  1,  8,  33, 
40,  143,  205,  223. 

Legislation,  statute  fixing  gene- 
ral rules  for,  101,  110. 

Legitimacy,  183. 

Legitimist  party,  183. 

Liberal  political  movement,  157f. 

Liberty,  theory  of,  XLVIII  f. 

Lipps,  Die  ethischen  Grund- 
fragen,  55. 

von  Liszt,  Das  Volkerrecht,  235, 
236,  266. 

Locke,  Treatises  concerning  Go- 
vernment, XIII,  XIV,  XX,  XXI, 
xxn,  xxm,  24. 


Loeff,  182. 

London,  Conference  of,  265. 
Loria,    La   Sociologia,    190. 
Louis  XIV  (of  France),  XVIH, 

XIX. 

Louter  De,   Het  stellig  volken- 

recht,  233. 
Machiavelli,  xvm. 
Magna  Charta,   xvii. 
Maine,  xxix. 
de  Maistre,  183. 

Maitland,  Political  Theories  of 
the  Middle  ages,  XLI  note, 
XLIII. 

Majority  rule,  72—78,  239,  252, 
260  f. 

Manchester  School,    159. 

Mandates  to  representatives, 
92. 

Manigk,  Savigny  und  der  Mo- 
dernismus  im  Recht,  1 76,  1 77. 

Maurenbrecher,  6. 

Mayer,  Deutsches  Verwaltungs- 
recht,  xxxvi,  6,  141  f. 

Middle  Ages,  the  church  in  the, 
xvi ;  conflicting  jurisdictions 
of  the,  xvi  f ;  political  theory 
of  the,  xvi  f,  16  f,  28. 

Mill,  On  Representative  Govern- 
ment, XL  vn,  156,  160 — 162. 

Minority,  XLVII,  76  f,  82. 

Mohl  von,  31. 

Monod,  xvii. 

Montesquieu,  De  V esprit  des  lois, 
xiv,  xxi,  25 — 27,  96,  189. 

Natural  law,  school  of,  1 75,  1 77, 
186;  theory  of,  60,  177  f. 

Natural  rights,  school  of,  xn, 
84,  85 ;  theory  of,  xxxv,  XLIV. 

Nature,  law  of,  xxm,  xxvni, 
15,  24,  25,  28,  85,  183,  202, 
207,  208;  state  of,  22,  190. 


INDEX. 


279 


Necessity,    law    of,     100 — 102, 

103  f,  264,  272. 
Neo-Hegelian      philosophy, 

XXXIV,   L. 

Netherlands :  burial,  statute  on, 
105;  child  labor,  commission 
on,  190  f;  Court  of  Cassation, 
106  f;  labor  legislation,  board 
to  enforce,  230;  legislation, 
statute  fixing  general  rules 
for,  101,  110;  majority  rule, 
constitution  provides  for,  78 ; 
National  Postal  Savings  Bank 
228,  241;  reform  of  the  con- 
stitution, commission  on,  1 82 ; 
Sabbath  observance,  statute 
on,  109;  safety  devices  for 
labor,  statute  on,  230  note; 
States  General  in  relation  to 
treaties  and  declarations  of 
war,  25 1 ;  stone-workers,  sta- 
tute on,  230  note;  unwarran- 
table interference  with  pro- 
perty, Civil  Code's  provision 
regarding,  106. 

Norway  abrogated  union  with 
Sweden,  266. 

Oath,  a  means  of  insuring  the 
performance  of  duties  by 
officials,  117  f. 

Objective  law,  Duguit's  theory 
of,  LII  f,  203. 

Objective  values,  problem  of, 
LXXI. 

Office-holding,  a  social  and 
economic  profession,  1 1 7 — 
122. 

Officials,  definition  of,  as  those 
who  perform  tasks  of  sove- 
reignty, 123. 

Orange,  House  of,    181. 

Ordinance-issuing  power,  222  f. 

Organismic  theories  of  the  state 
and  of  law,  xxxv,  L,  LIX  f. 

Pacifism,  250. 


Pacta  sunt  servanda,  255,  266. 

Pandects,  134. 

Paris,  treaty  of,  254,  265. 

Parliamentary  form  of  govern- 
ment, 33,  108,  138,  153,  172, 
223. 

Parliamentary  sovereignty,  xxi 

f,  LXXIX. 
Party  system,  81. 
Plato,    Republic ;    Laws,    xii, 

LXVII  f,   15,   151   f. 
Plural  voting,    162. 
Police  power,  international,  273. 

of  the  state,  222. 
Police  state,  theory  of  the,  144. 
Political   sovereignty,    xxn. 
Poor-relief,    197,   220. 
Popular    sovereignty,    xxn    f, 

XXVII,    XXXV,    XLVII,    LXXIX, 

5,   28—30,  42,    112,   204. 

Positive  School  of  Law,  49,  61, 
127. 

Pound,  The  End  of  Law  as 
Developed  in  Juristic  Thought: 
The  End  of  Law  as  Developed 
in  Legal  Rules  and  Doctrines, 
XLVIII  note,  LVI  note. 

Preuss,  Gemeinde,  Staat,  Reich 
als  Gebietskorperschaften,  xxx, 

XXXVI,    XXXVII,    LXXVIII. 

Private  international  law,  241, 
257. 

Property,  definition  of,  in  pu- 
blic law,  143. 

Prussian  Landtag,  conflict  over 
budget  in,  138. 

Public  services,  organization 
and  operation  of,  is  function 
of  state  and  of  law,  LIV  f, 
LXXVIII  f,  67,  123  f. 

Puchta,   178. 

Pufendorf,  25. 

Punishment,  concept  of,  196  f. 


280 


INDEX. 


Quetelet,  Physique  sociale,  190. 

Rationalism,  xn,  183,  184,  185, 
186,  188  f,  193  f. 

Rebus  sic  stantibus,   265. 

Recognition  theory  of  Bierling, 
42. 

Referendum,  93. 

Reform  bills  (English),  xxi. 

Reformation,  xn,  187. 

Renaissance,   187. 

Republican  form  of  govern- 
ment, 33,  223. 

Revolution  of  1688,  xxi,  xxm. 

Rhine,  Central  Commission  for 
the  Navigation  of  the,  2^6. 

Roman  law,  xv,  XL. 

Romans  did  not  possess  con- 
ception of  sovereignty,  xv. 

Root,  xxix. 

Rosin,  Souverdnitdt,  Stood,  Ge- 
meinde,  Selbstverwaltung,  xxx. 

Rousseau,  Control  social,  xxu, 
XLIX,  28—30,  42,  78,  189,  190. 

Russia  abrogated  Article  1 1  of 
Treaty  of  Paris,  254,  265. 

Sanction,  right  of,  33  f.  See 
also  Veto  power. 

Savigny,  XLI,  176,  177,  178, 
183. 

Savornin  Lohman  de,  53,  64, 
181. 

Schlossmann,  on  contract  in 
private  law,  131. 

Scholten,  64. 

Schiicking,  The  International 
Union  of  the  Hague  Confe- 
rences, 264. 

Schuppe,  Das  Gewohnheitsrecht, 

72  f. 
Separation  of  powers,  xxi,  25 — 

27,  32,  96,  189,  191,  219,  228. 
Seydel  von,  Bayerisches  Staats- 

recht,  xxv. 


Smith,  Adam,  free  trade  doc- 
trine of,  190. 

Social  contract,  xxxv,  XLVII, 
XLIX,  17—19,  22  f,  28,  39, 
41  f,  95,  271. 

Social   legislation,    196,   225. 
Social  solidarity,  LII  f,  LXXIX, 
202  f,  207. 

Sociological  theory  of  the  state, 
LII  f. 

Socrates,   186. 

Sophists,  70. 

Spinoza,  206. 

Stahl,  Die  gegenwdrtigen  Par- 
teien  in  Staat  und  Kirche,  \  83, 
184,  224. 

Stammler,  Die  Lehre  von  dem 
richtigen  Recht,  51. 

State-organ  theory  of  sovereign- 
ty, XXVII,  XXX. 

Statutes,  commission  to  pass  on 
legal  force  of  French,  109. 

Stoic  philosophy,  15. 

Struycken,  Recht  en  Gezag,  53, 
54,  60,  182. 

Stuarts  (English),  23. 
Suffrage,  88,  91,  155  f,  197. 
Supernational  law,  245  f. 
Swiss  civil  code,   100. 
Syndicats,   169  f. 
Thomasius,  25. 
Thorbecke,   191. 
Trias   politico,   see   Separation 

of  powers. 

Triumvirate   in   Holland,    108. 
Ullmann    Volkerrecht,    234. 

Utilitarian    theory    of    laissez 

faire,  xxxv,   158. 
Veto  power,  108,  153.  See  also 

Sanction,   right  of. 

Viollet,  Histoire  des  institutions 


INDEX. 


281 


politiques  et  administrates  de 
la  France,  xx  note. 

Vollenhoven,  273. 

Wage  boards,   168,   171. 

Washington,  treaty  of,  254. 

Watts,  discovery  of  steam  en- 
gine by,  190. 

Weyr,  Zum  Problem  eines  ein- 
heitlichen  Rechtssy  stems,  140. 

Wieland,  Die  historische  und 
kritischeMethode  in  derRechts- 
wissenschaft,  179  note. 

Wieser  von,  Recht  und  Macht, 
67  note,  68. 


William  VI  (of  Holland),   108. 
Willoughby,  The  Nature  of  the 

State,  xxvi  note. 
Windelband,    Praludien,    55. 
Wolff,  25. 

Women,  social  position  of,  196. 
Working  class,   155,   162. 
Workingman's    compensation, 

LXIX. 

Workingmen's  councils,   169. 
World  court,  272. 
Zitelmann,  Gewohnheitsrecht  und 

Irrthum,  73. 


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